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3tt tljc Court Of 3Siing'« &mif. 


Nineteenth, Twentieth, and Twenty-firft Years 
of the Reign of George III. 





£quidem cum colligo argnmcnta cat/fa nan non tum fa nhiiserare film 
quam expemlere. CiCLKO. 







THERE is no (pedes of publication which 
demands a more fcrupulous accuracy than 
thofe hiftorics of judicial proceedings and decifions 
to which the name of Reports has been long 

The immediate province of the courts of juftice 
is to adminifter the law in particular cafes. But 
it is equally a branch of their duty, and one of ftill 
greater importance to the community, to expound 
the law they adminifter upon fuch principles of 
argument and conftrudion as may furni(h rules 
which fhall govern in all (imilar or analogous 
cafes. / 

Such are the various modifications of which 
property is fufceptible, fo boundlefs the diverfity 
of relations which may arife in civil life, fo in- 
finite the poflible combinations of events and cir- 
cumftances, that they elude the power of enu- 
meration, and are beyond the reach of human fore- 
fight. A moment's refleftion, therefore, ferves 
to evince, that it would be impoflible, ^y pofi- 
tive and direft legiflative authority, fpecially to 
provide for every particular cafe which may hap- 

Hence it has been found expedient to cntruft 
to the wifdom and experience of judges, the power 
of deducing, from the more general propofitions 
of the law, fuch neceflary corollaries, as fliall ap- 
pear, though not exprefled in words, to be within 
their intent and meaning. 

A J Deductions 



Dcduftions thus formed, and eftablifhed in the 
adjudication of particular caufes, become, in a* 
manner, part of the text of the law. Succeed- 
ing judges receive them as fuch, and, in general, 
confidcr themfelves as bound to adhere to them 
no lefs ft rift ly than to the exprefs diftates of the 

But whether a certain decifion was ever pro- 
nounced, and, if it was, what were the reafons 
and principles upon which it was founded, arc 
matters of fad, to be afcertained and authenticated, 
ts all other fafts are, by evidence. 

The law of this country has been peculiarly 
watchful to prevent the approaches of falfehood, 
in the inveftigation and proof of the particular 
fafts litigated between contending parties. For 
this purpofe many rules have been eftabliflied re- 
lative to the competency or admiffibility of evi- 
dence, of all which the ultimate objeft is, to guard 
,the avenues of belief, and to fecure the minds of 
thofe who arc to determine, from impoficion and 

It would be natural to expeft a caution ft ill 
more rigid with regard to the evidence of judicial 
proceedings and decifions. Whether a particular 
aft was done, or contraft entered into, by a 
party to a caufe, or not, can only afFeft him and 
his opponent, or, at moft, thofe who become their 
reprefentatives ; and fliould that be pronounced to 
have happened, which in truth never did, third 
perfons would not be injured. But .whether a 
judgment alleged to have been delivered, was 
really delivered, and upon the alleged reafons, 
may affeft all perfons who are, or ftiall be, in 
circumftances fimilar to thofe of the parties to that 
caufe. Yet it has fomehow or other happened, 
that little or no care has been taken, nor any pro- 
vifions made, to render the evidence of judicial 
proceedings certain and authentic. 

jj The 

P R E I? A C E. Til 

The records of the courts are> indeed^ framed 
in fuch a manner as to conftitute indifputable do- 
cuments of fuch parts of the proceedings as are 
comprifed in them, but it is eafy to fhew that this 
goes but a vei'y little way. 

In the firft place, the authority of a decifion, 
for obvious reafons, is held to be next to nothing, 
if it pafles Juh filentio^ without argument at the 
bar, or by the court ; and it is impolTible from the 
record of a judgment to difcover whether the cafe 
was folemnly decided or not. Records, therefore, 
even when they contain a fufficient ftate of the cafe, 
do not afford complete evidence of what is re- 
quifitc to the future authority of the decifion. 

But, in the fecond place, it is well known in 
how few inftances the material parts of the ftate 
of the cafe can be gathered from the record. Ac- 
cording to the modern ufage, by far the greater 
number of the important queftions agitated in the 
courts of law come before them upon motions for 
new trials, cafes refer ved, or fummary applica- 
tions of different forts. In none of thofe inftances 
does the record furnifh the evidence even of the 
fafts; for which, in fuch cafes, there is no other 
repofitory, nor for the arguments and reafoning of 
the counfel and the court in any cafe, but the 
colleftions made by reporters *. On their fidelity 
and accuracy, therefore, the evidence of a very 
great part of the law of England almoft entirely 

The moft ancient compilations of this fort were 
the work of perfons fpecially appointed for the 
purpofe. In what particular manner they exercifcd 
their funftion, how far the courts fuperintended, 
or the judges affifted or revifed their labours, no 

• At an early period of our conftitution, the reafons of tha 
judgment were let forth in tlie record, but that pradice hat 
iong been difufcd. 

A 4 where 

viii PREFACE. 

^hcrc appears j and indeed almoft every thing relat- 
ing to them is involved in fo much obfcurity, that I 
believe their very names are totally unknown. 

It is probable, however, that the cotemporary 
judges, and thofe who immediately followed them, 
had fatisfaftory reafons for confiding in the accuracy 
of thofe reporters, fince their writings, called the 
Tear-books^ have always pofleffed a degree of tra- 
ditional weight and authority fuperior to what is 
allowed to any fubfequent reports. 

This, indeed, is in fome meafure owing to the 
circumftances of their priority in point of time, 
cxclufive of any confideration of peculiar authen- 
ticity or excellence, the decifions contained in them 
forming the bafis of that large fuperftrufture of 
fucccflive determinations which now fills the library 
of an Englißf lawyer. 

The fpecial office of reporter was difcontinucd 
fo long ago as the beginning of the reign of 
Hewy VIII. and the hiftory of the judicial pro- 
ceedings in IVefiminßer Hall, from that time till 
now, would have been loft in oblivion, if it had 
not been for the voluntary induftry of fuccecding 

The example was firft fet by fome of the ableft 
judges and lawyers of the i6th century, who find- 
ing that official accounts were no longer uken of 
what paffed in the courts of juftice, were ftimulatcd 
by a commendable zeal for that fcience of which 
they were diftinguiflied ornaments, to commit to 
writing for the ufe of pofterity, the hiftory of the 
moft important decifions which took place within 
their praftice or obfervation. 

Thofe eminent perfons have had a numerous 

train of followers, of different defcriptions, who, 

with unequal merit, and various fuccefs, hav^ 

1 i continue^ 


continued down to the prcfcDt times, a pretty 
regular fcrics of decided cafes. 

In the reign of James I. Lord Chancellor Bacon 
procured the revival of the ancient office of re- 
porter, but it was foon dropped again, and does 
not feem while it continued to have been produc- 
tive of the advantages expelled from it. I know 
of no reports attributed to the perfons then no- 
minated to the office, except thofe printed in the 
name of Serjeant Hetley^ who, as we are told in 
the title-page, was " appointed by the King and 
Judges for one of the Reporters of the Law'* 
Whether it was he or the I-ord Keeper Littleton 
who was really the author of thofe Reports, (many 
of them being cxa6t duplicates of thofe afcribed to 
Littleton^) they are far from bearing any marks 
. of peculiar {kill, information, or authenticity. 

Soon after the Reftoration, an aft of parliament 
having prohibited the printing of law books with- 
out the licence of the Lord Chancellor, the two 
Chief Juftices, and the Chief Baron, it became the 
praftice to prefix fuch a licence to all reports pub- 
liflied after that period, in which it was ufual for 
the reft of the Judges to concur, and to add to 
the imprimatur a teftimonial of the great judgment 
and learning of the author. The ad was renewed 
from time to time, but finally expired in the reign 
of King William. But the fame form of licence 
and teftimonial continued in ufe till not many 
years ago ; when, as the one had become unnecef- 
iary, and the other was only a general commendation 
of the writer, and no voucher for the merit of the 
work, the Judges, I believe, came to a refblution, 
not to grant them any longer; and, accordingly, 
the more recent Reports have appeared without 

I leave to others the enquiry into the reafons why 
IChe law has not provided fome method of handing 



down its decifions to future times, more folemn and 
authentic than what is now known, or indeed feems 
ever to have exifted i and I proceed to ftate to the 
reader the means I have employed to render the 
following reports as faithful, correct, and ufcful, as 
it was in my power to make them. 

When the queftion arofe upon the pleadings, or 
was connefted with them, there is hardly an in- 
ftance where I have not been favoured, in the moft 
obliging manner, with the paper-book, as it is called; 
that is, a copy of the record itfelf. In like man- 
ner, I have been fupplied with copies of almoft all 
the fpecial verdifts, cafes referved, and material 
rules, affidavits, and exhibits. I have alfo had the 
moft ready accefs to confult and tranfcribe what- 
ever I thought neceflary, in the Crown Office, or 
that of the clerk of the rules, as well as the cafes 
fent from the Court of Chancery, and the certifi- 
cates of the court upon them. 

One of the greateft difficulties I had to encounter 
was, in obtaining a complete ftate of the fafts when 
the cafe came on in the ftiape of a motion for 
a new trial. I was obliged, on fuch occafions, to 
colledt them, on the fudden, as they were read 
from the report of the Judge, and frequently with- 
out any previous knowledge of the caufe. Some 
of the moft eflential circumftances, which had efcap- 
cd me at firft, .1 was perhaps able to recover af- 
terwards, from the obfervations made upon them 
by the counfcl or the court. But then, in endea- 
vouring to catch the fafts in that manner, I was 
in great danger of lofing the chain of the argument. 
It has been my ftudy to remedy thefe inconve- 
niencies by every afliftance within my reach. The 
briefs of counfel have never been withheld from 
me ; but though they are extremely ufeful and fafe, 
where exhibits are to be fet forth or abridged, as 
deeds, bills of exchange, policies of infurance, C5Tr. 
they cannot be reforted to, but with the utmoft 
caution, for the parole teftirnony in a caufe. Yet 



even thcrCj they have often fcrved to explain an 
ambiguity^ or fupply an omiffion, in the notes I 
had taken in court. In all cafes I have had it in 
my power to collate nny own notes of the evidence 
with thofc of a great many of my friends at the 
bar; frequently with thofe.of the counfcl who were 
concerned in the caiife. ^^ 

In conGdering what is the bcft method of report- 
ing, I found that different writers had proceeded 
upon plans widely different from one another. 

Some have prefixed, to all the leading cafes, a 
full copy of the pleadings, thereby rendering their 
work at the fame time a book of entrieSy and of 
reports. It was once my intention to have done 
{q, but I was diffuaded from it by much better ojri- 
nions than my own. 

Some have not only ftated the fads at great 
lengthy but have given the arguments of counfel 
almoft as diffufely as they were delivered at the bar, 
diftinguifhing the fpeeches of the different advocates 
on the fame fide, feparately, under the names of 

Others, on the contrary, have only given a very 
abridged ftate of the cafe, together with the mere 
point decided, omitting not only all the arguments 
at the bar, but alfo moil of the reafoning of the 

Each of thefe two methods has its parti zans, and 
each has its peculiar advantages and difadvantages. 

The firft is more inflruftive for the younger part 
of the profeßion ; it exhibits a more complete pic- 
ture of the cafe, and does more jnftice to the learn- 
ing and ingenuity of the feveral advocates. 

But, on the other hand, its prolixity fatigues the 
attention, k abounds with repetitions, and often 




difgufts the experienced lawyer, by a detail of ele- 
mentary principles, trivial arguments, and hackney- 
ed authorities. 

I have endeavoured to fteer a middle courfe be- 
tween thofe two extremes» 

T. I have been particularly attentive to ftatc 

whatever was material in the pleadings or evidence ; 

and fometimes, where I was afraid of omitting 

what might be deemed effential, I have fet forth 

verbatimy a cafe, a plea, or a fpecial verdid. 

2. I have thrown together, into one difcourfe, 
the arguments which were ufed by all the different 
counfel who fpoke on the fame fide, digefting them 
in the order which feemed to me to give them the 
greateft effeft. In following this plan, as I have 
been often obliged to cloath the thoughts of others 
in language of my own, fo I have been rather fo- 
licitous to preferve what appeared weighty and im- 
portant in point . of reafoning and authority, than 
anxious to retain every thing that was faid. But I 
have taken care to omit no cited cafes which I have 
found upon examination to be materially applicable 
to the point in queftion* 

3. The judgments of the court I could have 
wifhed to give in the words in which they were 
delivered. But this I often found to be impra£li^ 
cable, as I neither write fliort-hand, nor very quick- 
ly. Memory, however, while the cafe was recent, 
fupplied at home, many of the chafms which I had 
left in court ; and, by comparing, and as it were 
confronting a variety of notes taken by others, 
with my own, I was frequently enabled to recall, 
and infert in my report, material pafiages which I 
(hould otherwife have loft. Thus I have profited 
in feveral refpefts by the liberal communications 
and concurrent labours of others of the profeflion, 
fome of them perfons of the firft eminence at the 
bar. I acknowledge the afiiftance I have received 


PREFACE. 3ciii 

from them with fatisfaftion and pride. If this book 
Ihould meet with any degree of approbation, they 
are fairly entitled to a great fliare of it; and I 
Ihould with pleafure declare that fome of my friends 
ought, almoft as much as myfelf, to be confidered 
as the authors, were it not that I might thereby 
feem defirous to involve them in my refponfibility 
for its imperfeftions. 

4. I have carefully confulted the original authors 
for all the cafes cited, and have beftowed all pof- 
fible attention to fee the names and references cor- 
reftly printed. 

5. To avoid unneceflary repetition, I have omit- 
ted the frequent conclufions of « fer cur. unanimi- 
*' /^," " unanimoufly," (äc. and therefore I take 
this opportunity of mentioning, that the unanimity 
of the court is to be underftood, in every calc 
where I have not exprefsly dated a difference of 

6. It is ufual with fome reporters to give an ac- 
count of different ftages of the fame caufe, or of 
arguments in the fame cafe, but delivered at dif- 
ferent times, in different parts of their reports, ac- 
cording to ftridl chronological order. This feems to 
me to give them too much the appearance of being 
the mere tranfcripts of their note-books. I have, 
therefore, thought it more advifcable to bring every 
thing refpefting the fame cafe into one point of 
view, by dating the whole together, and inferting 
it on the day on which the cafe was ultimately 
difpofed of; diftinguilhing, however, the different 
ftages of the caufe, and marking the particular dates 
6f each. 

7. It may be proper to mention the reafon why 
I have fo rarely given any account of decifions re- 
lative to the granting or refufing difcrctionary cofts : 
It is, becaufe fuch decifions depend for the moft 
part on particular circumllances, and therefore can- 


flot operate as precedents or authorities on other 

8. One or two cafes reported by me have come 
on, at firft, in the court of King's Bench, or elfe- 
where, at a time prior to the period to which I 
have confined n^yfelf, and one or two have been 
heard again and decided upon, in another form, or 
feme fubfcquent ftage, pofterior to that period« 
Of thefe, where I have been able, I have com- 
pleted the hiftory, by dating the more early or later 
proceedings in the notes, 

9. I have alfo printed in the notes feveral ori- 
ginal cafes which were either cited, or feemed to 
me applicable to the point of the cafe I was then 
reporting. For this 1 truft no apology is necef- 
fary, though many of them will foon probably be 
laid before the public, more fully and correftly, in 
reports now preparing by another gentleman, and 
appropriated to the period in which tliey were de- 
termined *. 

10. But I am not without the apprehenfion of 
meeting with fome degree of cenfure for. having on 
different occafions given a place, in the notes, to 
arguments and obfervations of my own. I truft 
I have througliout avoided the appearance, as I 
certainly never entertained the defign of difcufling 
or controverting the folemn judgments of the court. 
This, it is true, was both, recommended and prac- 
tifed by Mr. Juftice Foßer, in his Reports, but I 
cannot help diinking it is very far from being any 
part of the reporter's province. At leaft, what 
might become a Judge of his eftablidied reputa- 
tion, would have been extremely unbecoming in 
me. I have merely attempted, in fome places, to 
illuftrate or confirm the doctrines laid down in the 
text, by authorities which have occurred to me in 
tlic courfe of my reading, or arguments which the 

♦ Mr. Cc^vfer's Reports were publilhed foon after thcfe, and 
are cjtcn referred to in this edition. 



fubjeÄ matter may have fuggcftcd. Sometiincs, 
though rarely, I have entered into the confidcration 
of general legal queftions ; but if the reader is 
not too fevere a critic, he will have fome indul- * 
gcnce for that part of the notes, as no ideas of 
my own have been fufFered to obtrude themfelves, 
upon him in the text. I own I thought it an un- 
neceffary, as I (hould have felt it to be an irkfomc 
reftraint, in a work confiding of near 800 folio 
pages, and containing fuch a variety of reafoning 
on fubjefts extremely diverfified, and often highly 
interefting to a lawyer, to confine myfelf fo rigidly 
to the mere bufinefs of reporting, as never once, 
even at the bottom of the page, to have mentioned 
what might occur to myfelf on any of thofe fubjedb. 

!!• To attain in fome degree the advantages al- 
ready hinted at of the more concife fpecies of re- 
ports, I have, after the example of fome of my 
predeceflbrs, inferted, on the margin, an abftraft 
of the principal point or points of every cafe. The 
plan on which I have formed thofe abftrads has 
been, to ftate the point as a general rule or pofi- 
tion. This method, upon the whole, feeniis to be 
the moft ufeful, though it has its inconveniencies. 
Where a cafe turns upon a complication of fads, 
not likely ever again to be combined together, a 
propofition including all thofe fadts, and purporting 
to be a general rule of law, has an uncouth and 
awkward appearance. However, in fuch cafes, I 
have facrificed particular propriety to general uni- 

12. The table of matters has been framed with 
a view to render it a fort of alphabetical Digcft of 
the contents, and as I wi(h that on many occafions 
thefc reports may fave the reader the trouble of re* 
curring to others, I have mentioned not only the 
points adjudged in the cafes I have reported, but 
alfo thofe cited from prior authorities and determi- 
nations. There arc times when this may prove of 
confiderable ufe to the praftifing lawyer. It is un- 
ncccffary to tell the ftudent, that he ought always to 
(iod Icifur? to confultthc originals. 

13. In 


13. In addition to the ufual index of cafes re* 
ported, I have prefixed another of thofe cited or 
ftaced at larse in the text or notes. If this fhoutd 
not prove of the advantage I intended, I fhall have 
to regret that I employed a good deal of time up- 
on it, in a manner certainly extremely dry and un- 
entertaining. But I cannot but flatter myfelf that 
it will furnilh an ufeful Repertorium of all the im- 
portant cafes that were cited and relied upon in the 
court of King's Bench during a period of three 
years, which muft amount to a great proportion of 
the principal common-law authorities. Befides, as, 
in moft inftances, the material pans of the cited 
cafes are abftrafted in fome one of the reported 
cafes, and in many parts of the work feveral of 
them are obferved upon, and explained, this in- 
dex, by enabling the reader to bring every thing 
relative to the fame cafe under his review at once, 
will fupply him with valuable Readings and com- 
mentaries upon moft of them. 

Thus I have explained the nature and plan of 
this volume. I now dedicate and confign it to the 
life of my profeflion. If it has at all done juftice 
to the great judicial qualities of thofe who at pre- 
fci-t fill the Bench, it will be acceptable to my 
contemporaries and pofterity. If I have failed in 
that refpect, thofe qualities are fo univerfally felt 
and acknowledged, that no reputation can fufFer 
but my own. Even with regard to myfelf, what- 
ever may be the fuccefs of the work, the intention, 
at leaft, cannot meet with difapprobation ; being no 
other than to render fome fervice to the public, by 
communicating to lawyers in general, the fruits of 
my private induftry and labour. 1 he nature of the 
undertaking precludes that fort of ambition by 
which authors are fo often animated ; and my ut- 
inoft aim will be attained, if I fhall be found to 
have merited, in any degree, the humble praife of 
ufeful accuracy : Ubi ingenio non erat locus ^ cur 4g 
teßimovitm promeruije conientus. 


[ xvü ] 




THE additions which have been made to the 
following work will be obvious to the reader. 
As a new impreflion was called for^ it would have been 
unpardonable not to aim at improvement. But it was 
due to thofe who are poflefled of the former edition, 
to render this as little prejudicial to its value as pof- 
lible. On that account, the new cafes, notes, an4 
references, have been printed in a detached pamphlet, 
on paper of the fame ßze with the firft edition. From 
the length offome of the additional notes, new pages 
were found neceffary, otherwife the fame number would 
have extended fometimes to feveral leaves, and, though 
that has been pra£lifed in the enlarged editions of 
fome law books, it is a method which feems to me 
not fit to be imitated s becaufe it defeats, in a great 
degree, the end of numbering the pages. But the 
pages of the former edition are printed on the margin 
of this, and the pages of this may be written on the 
margin of the former : by which means, cafes or paf- 
fages cited according to the one or the other, will be 
found without difficulty in either. Some may think, 
the enlarged fize of the work has rendered it too bulky 
for one volume j two title pages, therefore, are printed^ 
that thofe who chufe may have it bound up in two« 

Lincoln's Inn, 
Jan. I, 1786. 

Vol. I. 


[ »ix ] 




ANEW imprcffion of thefc Reports bcirig called 
for, it has been thought advifeable to print them 
in odavo, as that form ieems now to be generally 
thought the moft convenient. The reader will find 
fome additional notes and references in this edition, but 
they are not numerous enough, nor of fufficient im- 
portance, to be printed apart, as was done with 
rcfpedt to the former additions. 

Lincoln's Inn, 
Jan. 1, 1791. 

[A] z 


o P 


ABBOT agalnß Plumbc. 
Abcmcthy againß Landale. 
Abingdon (Den, leffee of Taylor, againß the 

Ack^^orth againß Kempe. 
Adderley (the King againß) 
Ailefcury (the Earlof ) againß Pattifon. 
Ailway againß Burrows. 
Alfop againß Brown. 

' againß Price. 

Alfton (Goodright, leffee of ) againß Wells. 
Ambrofe (Hodgfon againß J 
Anchcr againß the Bank cf England. 
Anfeil {ii^Xchr againß ) 
Armiftead againß Philpot. 
AffHnall (Rufliton againß j 
Aftle (Grant againß) 
Ayres againß Wilfon. 


- 2l6t02I7 

- 539— S4i 

- 40— 43 

- 4^3—405 

28 — 30 

- 263, 264 


- i6c — 168 

- 771 — 780 

- 337—345 

- 637—641 


- 679—684 

- 722—732 

- 385» 386 


Bache Äg'/w«^ Proöor. - - - .382— 384 

Bacomb (Pavne againß) - - - 65 1 

Bailly flgö/ij^Wilkinfon. - - - 671 

^AA^m iyTiWis againß ) - - - 450> 45' 

Bank of England ( A ncner/i^^j//^ the) ' - 637 — 641 

(the King againß the) on the 

profccution of Parbur y - - - 5 ^ 4 — 5 ^ 7 

Vol. !• Jl Bannifter 




Banniiler (Webfter fl'^rt////?^ - - 39310397 

Barbqr againß Fletcher. - - - 3^5 > 3^6 

rt^ö////? French. - - - 294 

Barkley (Jones ogatnjl) . - - 684 — 698 

Barlow (birt /T^^i/;//?^ - - - 171 — 175 

Barnfalhcr ^(>^m«,7 Jordan. - - - 452 

Barrat (tlie King againß) - - 465, 466 

Bate (tlic King againß) on the profecution of 

the Duke of Richmond. - - - 387 — 391 

Bean <»g»///^ Stupart. - - . 10— 14 

BeaDey (Fiihen/g-r///^^ - - -235 — 237 

Bermon againß Wood bridge. - - 781—790 

Bernard! fl^^////^ Wotteux. • *- - 575 — 583 

Billington (Goodtitle, leflee of Winckles, 

againß) - " - - - 753—758 

Birkbeck (Cort fl^^Ä////?^ - - - -218 — 225 
Birmingliam (the King againß the Inhabitants of) 333 — 336 

Birt /2^ö//^^ Barlow. - - - \']i — 175 

Bize fl^/i///;^ Fletcher, - - - 284 — 291 

Blackburne (Cornu ög^fl/V^y - - 641 — 650 

Blacquiere rt^/j/V/^ Hawkins. - - 378 — 38t 

Boats againß Edwa^'ds. - - -22 7, 228 

Borthwick (the King /7^/7//^^ - - 207 — 212 

Bourdieu (Lowry againß) - - - ^^68 — 472 

Boyce againß Whitaker. - - - p4 — py 

Boydell (Simond flr^rt/;/^^ - - . 268 — 272 

: — ( Woold ridge /i^rt/«/?^ - * 16 — ift 

Bradbury againß Wright. - - - 624 — 628 

Bradford againß Foley. - - - 63 — 67 

Brady (leflee of Norris) againß Cubitt. - 31 — 40 

Branch againß Ewington. - -518*519 

Brecknock (Mauricet/Tgrt/Vy?^ - - 509, 510 

Bree rt^^i/^ Holbech. - .» - - 654 — 657 

Bridge (Oxley ö^/i/(j^) - - - 67 

■■ (Syers againß) - - - 527 — 53 1 

Brillow (Fifhcr againß) - - - 215 

Briftow againß Wright* - . - 665 — 66<). 

Brown (Alfop againß) - - - 192 

againß Bullen. - - - 407 — 410 

• (Holmes, leflee of) againß Brown. - 4J7, 43 ft 

(Richards /i^/wV^^ - • - 114 — ii(J 

againß Rivers. - - • 472, 47 j 

Bulkclcy (Ren, leflee of Hall^ ogatnß) - 292, 293 

Bullen (Brown againß) - - - 407 — 410 

Burnell r/^/j77£/? Martin. - - -417, 418- 

^ (Walker againß J - - • jiy — 2201 

huitowi (^Ailwäj agaifßj • • - 263, 264 



Butcher (Doe, leflee of Simpfon, againflj - 50 to 54 

againfi Evido. - . - 2p^ — 297 

againjl Green. - - - - 677, 678 

Caize (Robfon ^^^rV/^^ . - .. 228 — 23 1 

Campion (Pearfon againjl) - - - 629 

Carmichael (Wilkins ägaiuß) - - loi— 105 

Carrington (Stevens againj} ) - - - 27, 28 

Cater (Right, leflee of) agai/i/l Vrlce. - 241 — 244 

Cator (Goodright, leflee of Hare, agalnß) - 477 — 486 

Chancellor agalnß Poole. • - - -764 — 767 

Chandler ^l^ji«^ Roberts. - - - ^8 — 61 

Clarges (Goodtitle, leflee of ) /i^j///^ Funucan. S^Sr— 575 

Clegg fl-^a/«// Molyneux. - - -780, 781 

Cioutmen (WooUey againß) - - 244 — 246 

Cockfedge ff^/i/Vf;? Fanfhaw. - - 119 — 134 

Cogan (Hyde againß) - - - 6pp — 707 

Coghlan againß Williamfon. - - - pj 

Colt ( Ex parte ) - - - 1 14 

Coles (the King againß) - - - 420 

Comerford ^Tg^fVj/? Price. - - - 312 — 314 
Company of Carpenters, tsfc, (the) againß 

Hayward. - - - - 374> 37S , 

Cope againß Cooke. - - - - ^6^^ ^68 

Cooke (Cope againß) - - - 46^^ 468 
Corhampton (the Kmg againß the Inhabitants of) 62 1, 622 

Cornu againß Blackburne. - - - 641 — 650 

Cort /i^/i//j^ Birkbeck. - - - 218 — 225 

Cottcrel againß Hooke. - - - 97 — i o t 

Cozens {the King agaifß ) - - - 426 — 428 

Cubitt (Brady, leflee of Norris, againß) - 31—40 

Dallas (Thornton againß) - - • 46 — 49 

Dallifon (Wiglefworth fl^j//^^ - - 20 1 — 207 

Dalby (Devenegc fl-^j/;?/?^ - • - 384 

Davidfon (Eddie j^a/^^ * . - 650, 651 

Davie (the King Ägtf/'/j/?) - -j - 588 — 590- 

againß StCYCns. - - - 321 — 324 .^^^^ 

Dawes (Hcare Ä^/7/;//?^ - - - 3^1 — 3^3 *V?^ 

X>cn (leflee of Taylor) againß the Earl of Abing- 

ilofi» . • - - - 473—47^ 

a 2 Devenega 

*• K 

. '^■\'!^^^^ ' 



Dcvcncge /jg/7/>^ Dalby. - - - 384 

Devon agahift Watts. - - - 86 to 93 

Ding^^'all agawß Dunfter. - - - 247 — 250 

Docking (Goodright, leflee of ) ogainß Dunham. 264 — 268 

Doc (leifee of Fonnereau) agawß Fonnereau. 487 — 509 

(kflee of Gibbons) agaifß Pott - 7 1 0—7 2 2 

(leflee of Matthews) agawß Jackfon. - 1 75> ' 1^ 

(leflee of Simpfon) agawß Butcher. - S*^>"" 54 

(leflee of Watfon) agawß Shippard. - 75 — 79 

Dovcrs (Smith /7^fl/«^^ - - - 428 — 431 

Downes (Wefton /T^fl//^^ ... 23 — 25 

Duncan ^7^fl//^ Thomas. - - - 196 

Dunham (Goodright, IclTee of Docking, ^^/jZ/t^^ 264 — 268 

Dunlter (Dingwall agawß) - - - 247 — 250 

Earl ^^^//^ Harris. - - - 3^;^ — 3^9 

Eaft India Company (Hotham agawß the) - 272 — 278 

Eafto (Butcher agawß ) - - 295 — 297 

Eaton^^^//^/? Jaqucs. ... 445—463 

Eddie /Tg/i////? Davitlfon. - - -650, 651 

Eddowcs ^^w/^ Hopkins. - . . 3-6 — 378 

Ellen (Lc Caux agc'mß ) - - . 5^4 — 620 

i <4^W;£/? Parkinfon. - - - 732 — 73Ö 

Edwards (Boats agawß ) - - * 227, 228 

K\' par /e Cole. - - - - 114 

Kwcr (Lilly aga'wß ) - - - 7 2 — 74 

Lwiiigton (Branch r/^rt/;^^^ - - - Ji^S 519 

Fane (tl)c King rgaltß Lyme Regis, on the 

profecution of ) - - - - joj; — 137 
Fiiiic iind Luther (the King aga'wß Lyme Regis, 

onilie profecution of ) - - - 14p — i(5o 

Fanll^aw (Cockfedge ^^/w'w/?^ - - 119 — 134 

Fcrguflbn (Thclluifon agawß) - - 361 — 370 

Fiiljcr aga'wß Bcafley. - - - - 235 — 237 

^^fi/Vy/ Brillow. - - - 215 

(Tarlton /7ff^;/;^^ ... 6^1 — 5y^ 

Flv-'tchcr (Barber //j;v///^^ - - - 305, 306 

{IVizc agaifß) ... 284—291 

(Hurd agaifß) - - . 43— 4^ 

(^lUlCo agaifß ) - - - 231 — 235 



Fletcher (Pbnche agatnß) - - -251 to 254 

(Thdluflbn agamß) - - 3^5* 3^ö 

Foley (Bradford agmnd) - - 63 — 67 

Fonnereau (Doe, leffee of) agatnß Fonnereau. 487 — 509 
Forfyth (Stone agatnß) - - - 707 — 709 

FowJer (Goodtitle, leflee of) agatnß Welford. 139 — 141 
Frampton (the King agatnß tlie Inliabitants of ) 418, 419 
Frafer (Macdowal agatnß) - - 260 — 262 

Freckleton (Yztcs again/}) - - 623, 624 

French (Barber agatnß) - - - 294 • 

Frith (Williams agatnß) - - 198 

Funucan (Goodtitle, leflee of Clarges, agamß) 565 — 575 
Furly flrg'ö/^j^ Newnliam. - - - - 419, 420 

Gallimore (Mofs ^^/i//^^ - - -279 — 283 

Gibbons (Doc, leffee of) agatnß Pott, - 710 — 722 

Gilby ö^fl/>//? Lockyer. - - - -217, 218 

Gloucefterfhire (the King agatnß the Jufticcs of) ipi 

Goodright (leflee of Alfton) againß Wells. - 771—780 

(leflee of Docking) againß Dunham. 264—268 

(leflee of Hare) agamfl Cator. - 477—486 

Goodtitle (leflee of Clarges) againß Funucan. 565 — 575 

(leflee of Fowler) againß Welford. - 1 39 — 1 4 1 

* againß ^onh. - - - 584, 585 

(leflee of Winckles) j^^/'/t/? Billington. 753—758 
Godwin (the King flj^j/;^^ - - - 397 — 401 

Gordon (the King againß Lord George). - 590 — 594 

Gough (the King j^fl/;//?^ - - - 791 — 798 

Grant ^^ö/)2^ Aftle. - - - 722—73^ 

Gray's Inn (the King againß) on the profccu- 

cution of Hart. - ^ • - 3^3 — 357 

Greaves (the King fl'^^i//^^ - - Ö32, 633 

Green (Butcher againß) - - - Ö77, 678 

Gfindley rt^m*/7/? Holloway. - - - 307, 308 


Hall(Keech, leflee of Warne, againß) - 21 — 23 

. (Ren, lefleeof ) ÄgmV^ Bulkeley. - 292, 293 

Hanwood (the King againß the Inhabitants of ) 439 — 44 1 

Hare (Goodright, leflee of) againß Cator. - 477 — 486 

H;irris (Earle fl^rt/V/;?^ - - - 357—359 

a 3 Hurt 


Hart (the King agahi/I Gray's Inn, on the pro- 

fccutionof) - ... 353^0357 

Hartley (Roberts /7^^/«^^ . - - 3ii>3i2 

HaL'jjr agalnjl Ani'ell. - - - ig^ 

HaflL:!! (j action rt^/7////?^ - - - o^o 
Hafweli fthc King againß ) on the profccution 

9f the Duke of Richmond. - - 387 — 391 

Hatch (Holford ^j^rtr/V^^ - . . 183 188 

Hawkins (Dbcquicrc^^^iV^^ - - 378 381 

— ^^-^'V^Magnall* - - . 466, 467 

(Polvbank ngatfiß } - - - 329, 330 

Hayley ^jg^^/;^ Riley. - - ^ ^j^ ^2 
Hayward (the Company of Carpenters, &c. 

^g^i^lß) . ^ - ,. - - - 374, 37J 
rieaward ^gawß Hopkms. ... 448, 449 
Hcckmondwickc (the King agahiß the Inhabit- 
ants of) - - . . ^(54 
Hind {Martyn agalnß ) ... 142—148 
Hoi^re ii^fl/V^ Dawes- - - - 371—373 
Hodges ^j^^/j^Middleton» ... 431—435 
Hodgibn fl^^^jf^ Ambrofe* - . 337 ""34S 
Holbcch (Brce againfij - . , 6c4— 6c7 
Hole {Wdlh ^^...«// . . . 238, 239 

Holford rt^iifjT^ Hatch- - - . 183 188 

Holloway (Grindlcy ^g'^^^tfi ) - - 307, 308 

Holmes (leilee of Brown) rgalnß Brown. - 437, 438 

Hone y wood (Ward ^^rt/V^^ , - 61 63 

Hooke (Colterell /T^/ffiV£/?J? . • p-7 loi 

Hooper Ä^Wf£/? TtIK ... 198—200 

Hopkins (Eddowes /^-.'/w7 I - • . ^76 3^8 

' ; (Heaward again/) . . 448, 449 

Hotnam a^ittnß the Kall India Company. - 272—278 

Hulland (the King agamß the Inhabitants of ) - 657, 658 

Hülfe (Stracy /7^/i;>y;^ . . ^ 4i,_4J7 

Hunt (Mafon agaUß) ... 297—300 

Hurd ö^fl/V^ Flttchcr. - • - 43 4- 

Hyde ö^jZ/jy? Cogan, - . • , 699—707 

Jackfon(Doe, leflee of Mathews, agahß) - 175, 176 

" ^^«//i/? HalTcll. - - . . 320 

Jaques (Eaton /7^^//j/?^ ... 455—463 

Janfon ^7^j//^ Wilhbn. ... 257—260 

Teffcry ö^tf/,^ White 476, 477 

Jlcs (Pcajrfon ö^^/V//?^ , ^ -.556—561 




Johnfon (Megit agawjfj 

(Si nip foil agaitift) 

Johnftoii agcdnß Sutton. 
Jones again/} Barkley. 

(the King agäinß) 

' 4^a/;7^ Maunfell. 

— — ^cnry agalnfi J 

ogaitift Williams. 

Jordan (Bamfathcr agahtß) 


7 — ID 
254, 255 
6Ö4— 698 
214, 215 



Keccli (leflee of Warne) againß Hall. - 21 — 23 

Kempe (Ackworth againß) - - - 40— 43 

Kennoway (Noble Ä^ö/«/?^ - - 510 — 513 

Kenny (LongQlyimp fligÄi///?^ - - - I37-~I39 

King (the) /^ii^ Addcrky. - - 463—465 

. againß the Bank of England, on tlie pro- 

fecution of Parbury. - - - ^24 — 527 

againß Barratt. - - - 4Ö5, 466 

— ^ againß Bate, on the profecution of tlie 

Duke of Richmond. .. - - 387 — 391 

— ■ againß the Inhabitants of Birmingham. 333 — 336 

againß Borthwick. - • ^ 207 — z 1 2 

fl^ei/»/? Coles. - - - ^20 

againß the Inhabitants of Corhampton. 621, 622 

— againß Cozens. - - - 426 — 428 
. againß Davie. - - - 588 — 590 

— againß the Inhabitants of Frampton. - 418, 419 
■ ag€unß the Juilices of Glouceilerfhire. - 191 

againß Godwin. - - - 397 — ^oi 

againß Lord George Gordon. - 590 — 594 

' againß Gough. - - - 791 — ^98 
againß Gray's Inn, on the profecution 

of Hart. . . - - 353—357 
^^^^ againß GTt2L\t%. - - - 632, Ö33 
againß Hafwdl, on the profecution of 

the Duke of Richmond. - - - 387 — 391 

againß the Inhabitants of Han wood. - 439 — 441 

againß the Inhabitants of Heckmond- 

wickc. . - - - "564 

againß the Inhabitants of Hulland. - 657, 058 

againß Jones. - . - 300 — 302 

againß the Inhabitants of Leigh. - 46 

. againß Lyme Regis, on the profecution 

ofFane. • . . - 135—137 

»4 Kbg 



King (the) agamß Lyme Regis, on the profccu- 

tion of Fane and Luther. - - - 1 49 to 1 60 
againß Lyme Regis, on the profecution 

of Mitchell. ... - 79 — 86 
— — agmnß Lyme Regis, on the profecution 

of Raymond, .... r77 — 182 

agnifjfM^y. - . - . ipj—jpjj 

. c.gamß Miles, - - - * 284 

ngni n/l MorgTin. - - - - 314 

. againß the Inhabitants of Northfield. - 659—661 

— agaifiß the Inhabitants of North Shields, 33 1 — 333 

agahß Pitts. - - - - 662 — 664 

. againß Pugh. - - - 1 8 8 — 1 9 % 

againß Read. - ... 486, 487 

/igö////? Routledge. - -, - 531 — 538 

» againß the Inhabitants of St. John's 

Soutihwark. - ^ - . 225 — 227 

■ ^g^^fß ^^^ Inhabitants of St. Michael's 

in Bath. - - - - 630 — 632 

r againß the Inhabitants of Sandwich, 

otherwife Swannage. - . « ^62, 563 

(ig^ifß Smith, - ' - - 441 — 44Ö 

againß the Inhabitants of Stockland. - 70, 71 

againß HtT^SLtion. - - - 239 — 241 

againß the Inhabitants of Swannage, 

otherwife Sandwich. - . - ^^62, 563 

-^—^ again/l Toms, - r - 401 — 406 

/jg'fl////? Townfliend. - - -421, 422 

again/1 the Inhabitants of Under Barrow. 309—3 1 1 

againß the Inhabitants of Uttoxeter. - 346 — 350 

rt^rt/Vy/ Vaughan, - * - 516, 517 

again/I yi^\c\L - - . « n^ — ng 

againß Wheat man. - - 345, 346 

— ^g^^'ß ^^^^ Inhabitants of Winchcomb. 391 -—393 

— againß Wh i thread. - - . ^^p — ^^^ 

— agai/ß the Inhabitants of Wivelingham. 767 — 770 

• ß^^fl////? the Juftices of Yorkfliire. - 192, 193 

Kinneriley againß Orpe. - - - 56— 58 

' figoi"ß William Orpe. - - 5 1 7, 5 1 8 

Kirk againß Strickland, - - - 449, 450 

Landale (Abcrnethy againß) 
LangftafFc (Ruflel againß J 
Langton (Zinck againß ) 

- 539—542 

- 514—51^ 

- 749—753 




Lavabre öj^o/^ Walter. - - - 28410291 

— — — agüi/i^ WiUan. - - - 284 — 291 

Layton fl^tf/^ Pearce. - - - 15, 16 

lucCaux again/1 Eden. ... ^94 — 620 

Lie Chevalier ^igm«^^ Lynch. - - 170, 171 

IjCC agahtß White. - - - 256 

Leigh (the King agawß tiae Inhabitants of) 46 

Lcnch againß Pargiter. - - - 68, 69 

Lilly againß Ewer. - . - 72 — 74 

Linzec (Wemys ^7^ö/w/?^ - - - 324—328 

Lloyd againß Skutt. - ^ - 350 — 353 

— (Wiltihire/i^rti/j/?^ - ^ - 381, 382 
Lockyer (Gilby fl^fl/«/?^ - - -217, 218 

Longchamp ^7^/i/w/? Kenny. - - 137 — 139 

Loraine ^r^/i/«/? Thomlinfon. - - 585—588 

L.owe a^amß Waller. - - - 736 — 744 

Lowry againß Bourdieu. - - 468 — 472 
Luther (the King againß Lyme Regis, on the 

profecution of Fane and) - - - 149 — 160 
Luxton againß Robinfon. - - 620, Ö2l 
Lyme Regis (the King againß) on the profecu- 
tion of Fane. - - - - 135 — 137 
^^ (the King againß) on the profecu- 
tion of Fane and Luther. - - - 149—160 
(the King againß) on the profecu- 

tion of Mitchell. - - 79 — 86 

(the King againß) on the profecu- ^ 

tion of Raymond. - - - 177 — 182 

Lynch (Lc Chevalier tf^fl//^^ »• - - 170, 171 


Macdowall againß Frafer. - - 260 — 262 

M^cpherfon fl^ö/'/j/? Rorifon. - - 217 

Maghall (Hawkins againß) - - - 466, 467 

Martin (Bumell /i^^/w^^ - - ^417» 418 

Martyn flg/?i)2^ Hind. ... 1^2 — 148 

Mafon againß Hunt. - . - - 297-!-3oo 

■ agai^ Skurray. - - - 438 

Matthews (Doe, leflce of ) rt^ J/«/? Jackfon. - 175, 176 

Maunfell (Jones againß) - - - 302 — 305 

Mauricct fl^fl/^ Brecknock. - - 509, 510 

May (the King againß J . . - 193 — 19^ 

Mayor (Milford /j^fl//^^ - - 55 

Megit againß Johnfon. - ^ - 542—548 

Middleton (Hodged tf^ai/^^ - • - 431—435 




Miles (the King ngainß) - - 284 

Miiford aguhiß Mayoiv - - - ^ j 

Milks cLgfilnJl rictciicr, - - - 231 1023 j 
Mitchell (the King agnmß Lyme Regis, on 

the pTofecutLon of ) - - - ^p — g^ 

I (Rightj leUce of) a-^j/V//? Sidebotham. 759 — 764 

Molyrieux (Ciegg «guf«/?^ ... 780, 781 

Montague (SuUlvan ü^a/V^^ - - lo6 — 113 

Morgan (the King i^^/T//£,^^ - - - jj^ 

Mofs ügfiifiß GaiUuaore* - - - 279—283 

Motteax (Bcrnardi fl^^j>£/7^ ... m^^l'^'k 


Newnham (Fv^rly agnuf/f J - - - 419, 420 

Noble //^^^i;V/// Kennowray, - - 510 — 513 

Norris (Brady, leiTce of) agaiuß Cubitt. - 31 — 4a 

North (Good title aguinjl ) - - 584, 585 
Northfield (the King againß the Inhabitants 

of) - - - - - 6x,^^(i6x 
J^orth Shields (the King againß the Inhabit- 
ants of ) . - • ^ 33i_33j 

Ogden (Waters againß) 
Orpe (Kinnerfley againß) 
Orpe William (Kinnerfley againß ) 
Oadey againß Bridge. 

56- 58 

5^71 518 

taget flijf»//j/? Wheate. . • ^ 669— 67 X 
Parbury (the King againß the Bank of En- 
gland, on the profecution of ) - - 524 — 527 
Pargiter (Lench againß) - - - 68, 69 
Parkinfon (Eden fl^^^//7/?^ - - 732 — 736 
Pattifon (the Earl of Ailefbury againß) - 28 — 30 
Payne ö^rt////2 Bacomb. - - - 651 

- ^ - fl^/?/«/? Rogers, - - - 407 

(Samuel againß) . - - 359, 360 

Peacock flgß//?/? Rhodes. • - - Ö33--636 

Pcarce (Layton ö^/j////?^ - - - i5>i(S 

Fearlbn againß Campioiu - -. • 629 




Ve2x(on againJUks. - - •, - 55610561 

Pcnry agaht/i Jones. - - - 213 

Philpot (Armiftead againß) - - - 231 

Pitts (the King agahifi) - - - 662—664 

Planche tf^fl////? Fletcher. - - - 251 — 254 

Plumbe (Abbot fl^fli«^^ - - -216, 217 

Polyblank againß Hawkins. • - - 329, 333 

Poole (Chancellor againß) - - 764— 7Ö7 

Popham (Roe, leflcc of Roach, againß) - 25, 7J& 

Pott (Doe, lefiee of Gibbons, againß) - 710—722 

Powell againß White. - - - . 169 

Price (Alfop /j^fl////?^ - - . 160 — 1 69 

— (Right, leffee of Cater, againß) ^ 241—244 

■ (Comerford ei^öjw^^ - - - 312—314 

Pritchard againß Pugh. - - - 262, 263 

Proftor (Bache againß) - - . 382—384 

Pugh (the King /i|;fl////?0 - - - 188 — 19c 

— (Pritchard again/}) ^ - . 262, 263 

Raymond (the King againß Lyme Regis, 

on the profecution of ) - - - 177 — 182 

Rayner (Wo rtlcy öj^/7/;//?^ - - 637 

Read (tlie King againß) - - - 486, 487 

— againß Willan. - - - - 422 — 426 

Ren, (leffee of Hall,) agaitß Bulkeley. - 292, 293 
Rex. Fide King. 

Rhodes (Peacock againß) - - 633 — 636 
Richards /7^fl//7/? Brown. - . - u^ — ii(J 
Richmond (the King againß Bate, on the pro- 
fecution of the Duke of ) - - - 387 — 391 
Riclmiond (the King againß Hafwell, on the 

profecution of the Duke of ) - - 387 — 391 

Right (leffee of Cater) againßFncc. - 241 — 244 

—— (leffee of Mitchel) fl^^/'/T/? Sidcbotham. - 759 — 7Ö4 

Riley (Hayley fl^fli//^ J - - - 71, 72 

Rivers (Brown againß) - - - 472, 473 

Koach (Roe, leflcc ot ) againß Pophaqi. - ' 25* 26 

Roberts (Chandler ^^^z///? J - - 58 — 6\ 

——— fl^/j//7/7 Hartley. - - - 311, 312 

Robinfon (Luxton rt^t///y/?^ - - 620, 621 

Robfon rt^^/«/? Calze. - - - 228 — 231 

Roc (leffee of Roach) againß Popham. - 25, 26 

Rogers (Payne rfgf^i/«/?^ - - - 407 

Rorilba (Macpherfon /igai//^^ - - 217 




Routledgc (the King again/}) 
Ru(hton againß Afpinall. 
RuiTcl againß Langflafib. 


Saint John's Southwark (the King againß the 

Inhabitants of) - - - 225—227 
Saint Michael's in Bath (the King againß the 

Inhabitants of ) ... 630 — 632 

Samuel againß Payne. - - - 35p, 360 
Sandwich or Swannagc (the King againß the 

Inhabitants of ) - - - - 562, 563 

Sealy (White againß) - - - 49, 50 

Shippard (Doe, leflee of Watfon, againß) - 75 — 79 

Shirley (Trinder againß) - - - 45* 4^ 

Sidcbotham (Right, leflee of Mitchell, againß) 759—764 

Simond Ä^Ä/;»/? Boydell. - . - 268—272 

Simpfon (Doe, lefl'ee of )ö^fl////? Butcher. - 50 — 54 

■ againß Johnfon. - - - 7 — 10 

Rkurray (Mafon flg^/w/?^ - - 438 

Skutt (Lloyd againß) - - - - 350 — 353 

Smith fl^öi«^ Dovers. - - - 428 — 431 

— (the King againß) . - - ^41—^^5 
Staples (Thelluflbn /7^j/>^^ - - - 438, 439 
Stevens /j^/7//]^ Carrington. - - 27, 28 

{l^TLyx^ againß ) - - -321—324 

Stockland (the King againß the Inhabitants of) 70, 7 1 

Stone againß Forfyth. - - - - 707 — 709 

Stracy againß Hülfe. - - - 4^ I — 4 1 ^ 

Stratton (the King «^rt'/V///^ - - 239—241 

Strickland (Kirk againß) - - - 449, 450 

Stuart againß Wilkins. - - - 18 — 21 

Stupart (Bean /i^m'/£/?J - - - 11 — 14 

Sullivan /i^/j/Vj/? Montague. - - 106 — 113 

Sutton (Johnfton againß) - - - 254, 255 
Swannage or Sandwich (the King againß the 

Inhabitants of ) - - - - 562 — 563 

Syers againß Bridge. - • * 5 2 7-^5 3 1 

Tarlton againß Fiflier. , - - - - 

Taylor (Den, leflee of) againß the Earl of 

Abingdon. - - ^ . - 




Pages. 4 

Taylor ijfo//^ Whitehead. - - - 74510749 

TheUufTon 0^/11^ Ferguffon. - - 361 — 370 

■ <^^/w^ Fletcher. - - - 3^5>3i^ 

" /^ö//^ Staples. - - 4381 439 

Thomas (Dujican /i^öiw/?) - - - i^6 

Thomlinfon (Loraine agauifl) - - 585—588 

Thornton /7§^j/V/^ Dallas. - - - 46 — 49 

Till (Hooper agawj}) - - - * 198—200 

Toras (the King /^/^fl/;7/?j. - - - 401—406 

Townihcnd (the King ^^j'j/jT/?^ - - - 421, 422 

Trmder /Tg^fl/Ä^ Shirley- - - - ^j^ ^5 


Uoder Barrow (the King againß the Inhabit- 
ants of) - - - . 309—311 
Uttoxeter (the King ngahiß the Inhabitants of } 346-— 350 

Vaughan (the King z7güi//?/?j - - - 516, 517 


Walker ögöjV^ Bumell. - - -317—320 

« — agaifi/l Witter. - - - - i— , ^ 

Waller (Lowe cgainß) - - - 736 — 744 

Walter (Lavabre ag.nnß) - - - 284 — 29 1 

Ward ö^Ä//^ Honey wood. - - - 61— . Ö3 

Warne (Keech, Icflceof) /t^ö///^ Hall. - 21 — 23 

Wafe agaitß Wyburd. - - . 246, 247 

Waters tfj'fl/Vi/? Ogden. - - - 452*— 455 

Watfon (Doe, Icllee of ) /t^a/«^ Shippard. - 75— 79 

Watts (Devon aga'mß) - - - 86 — ^3 

Wavell (the King ^^/7/;^J - - - 116 — 118 

Web der agawß Eanniftcr. - - . 3P3 — 3^^ 

Welford (Good title, lelTee of Fowler, againß) 1 39 — 141 

Wells (Goodright, leflee of Alfton, againß) 771 — 780 

Welfh againß Hole. - . - 238, 239 

Wemys j^«/^ Linzee. - - - 324 — 328 

Wefton cgainß Downes. - - - 23 — 25 

Wheate (Paget r:^^//;///?j - - - 669 — 671 

Wheatman (the King /i^<7/>//7j > - - 345, 346 

Whitaker (Boyce f/jü/'///^ - - - 94—97 



Whitbread {the King againft) 
Whitcomb againß Whiting. 
White (JefFery agaifi/l) 
^— (Lee agahl/l) 

— (Powell agaiftß) 

agai rjl Sezly. 

Whitehead (Taylor againß) 
"tV^hiting (Whitcomb againft) 
Wiglefworth againß Dallifon. 
Wiikes (Wyllie againß) 
Wilkins ^i^fl/Ä^Carmichael. 

{StUTirt againft ) 

Wilkinfon (Bailly againft) 
Willan (Read againft) 
Williams againß Frith. 

— (Jones againß) 

Williamfon (Coghlan againß) 
Willis againß Baldwin. 
Willfon (Janfon againß) 
Wilfon {Ayres againß) 

(Lavabre againß) 

againß the Inhabit- 
of) againß Bil- 

Wiltfhire.ö^rt//j^ Lloyd 

Wkichcomb (the King 
ants of ) 

•Winckles (Goodtitic, leflce 

Witter (Walker /j^ö/V/^^ 

Wivclingham (the King againß the Inhabit- 
ants of ) - - . 

Woodbridge (Bermon againß) 

Wooldridge againß Boy dell. 

Woolley againft Cloutman. 

Wortley againft Rayner. 

Wright (Bradbury againß) 

- ■ (Briftow againß) - • . 

Wyburd (Wafe ^^/f/Vy/; 

Willie ^f^fli/i^ Wilkes. 

549^0 55 J 

47Ö> 477 


49> SO 

201 — 207 

101 — 105 

18— 21 


422 — 426 


214, 215 


450, 451 


385. 386 

3811 ZH 
' 391—393 

I— 7 


16— li 
244 — 246 

624 — 628 
665 — 669 
246, 247 

Yates againft Frccklcton. « - - 623, 624 

Yorkfliirc (the King agaitß the Juftices of ) - 192, 193 

Zinck againft Langton. 



o F 


N. B. The letter o. means Original^ and denotes, that th« 
cafe is not be found in any former book of reports ; the ktter 
n. by itfelf, or followed by a numerical charaSer^ as n. £i], 
n. [2], &c. indicates, that the cafe referred to is mentioned 
in one of the notes marked with numerical cbaraffers; n. 
followed by another letter, thus, n. {a), n. f^), 6fr. that 
it is in one of thofc marked with leUers ; and the mark f, 
that it is alfo in one of thofe which were added in the fecond 


ABDY's Ca/e, 538 
Abingdon y t^e King v^ the Mayor 

Abfor *v, French, 746 

Achcrlcy *u, Vernon, 38, 7 16, 717, n 

Adon <v. Eels, 61 

Adamibn, Hcylin t. 635 

Alderfon «i/. Temple, 259, 296 

Allen *v. Pcflial, 253. n. [a) 

Alfton, Fen 'v. 430 

Altham (Lord J 1/. the Earl of Anglefea, 

Amps (or Aunts), Robinfon v. 27 
Andrews 1;. Fulham, 66, tc n. 493 
— , Blandfbrd v. 693, 694 

Anglefea, Lord Altham <q, the Marl ^ 

Anthon <v. Fifher, o, 649, n. f» 

506, n. 
Antrim, the Duke cf Bockingham, m. 

Lord, 568 
Archer «v. Bothcnham, 126 
— — , Maye *v, yj-j^ n. 
Argyle *i;. Hunt, 379, 380, n. 
Arlington (Lord) *u, Merricke, 214 
Arton «u. Hare, 66 
Arundel, Berry 1/. 663 
Afti *v. Walker, o. 95 
Afliby If. White, 351 
Affievedo a;. Cambridge, 6 1 7, n. 
Ailell, Mills «v. 214 




AlUe i;. Grant, C. B. o. 724. n. to 

727, n. 
— , Grant v. B. R. T. 22 Qeo, 3. 

o. 731. n. to 732. n. 
Aftley (Sir John) the Cafe of his leafes, 

o. 572 

— a/. Reynolds, 698, n. 

— «i;. Young, 678 
Aftlin «V. Perkins, o. 485 
Attorney General (the) <v. Brereton, 

143, 144- 

— — — ^ f. Gill, 267, n. 

•i' - ' «v. Senior, 415, 416, 

Atwood, Vincent 'v. Go 
Auger *u, Wilkins, 378, n. 
Aunts (or Amps)^ Robinfon «u. 27 
Auften 'u, the Executors of Sir Willi am 

Dodwell, 688, 693 
Auftin «v. Jervoyfc, 692, 693, 694 

— a;. Taylor, o. 343 
Avclyn v. Ward, 66, 493, 505, n. 
Avery <ü. Hoolc, o. 683, & n. [1] 

Aynfworth, Tumi «z;. 194, n. 

Bachurft «V. Clink^rd. 651, n. 
Bagg's Cafc^ 80, 154 
Bagoti;. Oughton, 569, 573, 574 

_ V ,569, & n. {d) 

BagOiawi;. Spencer, 340, n. [2], 341 
Baker's Cafe^ 130 

— , Saunderfon ^\ 42 

Baleh, Doe Lefjee ofy «u. Pult and ethers, 
o. 773,Ä:n. [1], 775, & n. [2], 

77^/ 779 
Baldwin, Karver «v. 0. 494, 499, 502, 
. C03, & n. [i], 504, n. & t »07 
Ball 'v. Partridge, 549 
Baltinglafs, Triftram a/. Lady^ 569, 

Bamfield, Zouch 1/. 45 
Bampton, Bowycr o'. 247, n. [i], 741, 

^ 742' 743' 744 , 

Banks, Pattifon 1;. 0. 165, & n. [12], 

166, & t S4 
Barbeck, Tiiburgh *i;. 267, n. [1] 
Barefoot, Hopwood 1), 626, 628 
Barjciu 1;. Walmllcy, 743 
Barkley, Jones 1;. o. M. 22 Geo. 3. 

695, n. [3] to 698, n. 
Barnard, DceyLeße of, v. Reafon, 267, 

757 li 

Barnard, the King v. 536 
Bamardifton, Carter -v. 499, n. 505, n# 
— — — , Watkinfon -v, 103 
Barnes, Harris <v. 494, 496^ 499, 502? 
Barnevcit, Pawfoni;. o. 12, a. (4) 
Barnftaple, Bafiet «v. the Mayor of, 84 
Barriiigton, Serie a;. Lord, 37 
^nr»üw, Macarty 1;. 55, f 28, 164» 

166, t.55 
Bartlet, Linton 1/. 87, 91t* 296 
Baflet 1/. the Mayor ^Barnftaplc, 84 
Bathurft, Fletcher a/. 100 
Baxter t. Burficld, 70 
Bayley 'v. Grant, 102, 540 
Baynham <v. Matthews, 429, Sc n. [1], 

Bearcroft, Ex parte, o. 200, n. 
Beckwith's Cafe, 26, 44 

i Ibbetfon a;. 434 

Beech *v, Fu.xu..^^ 6^, Sc n. [6], 69 

,/i&/r King V. 191., &n. [25], & f .- 

Bcecher's Cafe, 190 
Bejulhin, Colthirft 1;. 755 
Bclchier 'v, Collins, o. 22. 
Bell 1;. Burrows, 405, n. {m) 

, Stratham «v. o. 66, Sc n. [4} 

Bellamy, Bodily «z;. 753, n. 
Bellafis 'i;. Burbreck, 457, 461 

1;. Heller, 464 

Bclton, Ex parte, 521 

Bennet, Silki/. 382 

Bennington *v, Taylor, 203 

Bcrrington "j, Parkhurft, 484, n. {a) 

Bcrnet, Tomkins 'v, 696, n. 697. n. 

Berry *i/. Arundel, 663 

Bertie «z.'. Falkland, 36 

, White, Lcf/ee of Perry, <v. 0. 53, 

Berthon, Kenyon v. 12, n. [4] 
Bettenham, Ricord *v. 643, 644, 646« 

647, 648 
Bevifton ^, HufTey, 762 
Billers ^. Bowles, 316, n. [2] 

, Lake 'v 42, Sc n. (w) 

Blngley's Cafe, 604 
Birch ru. Wood, 143, 144 
Bird V, Randal, 1 10 

, Mallory a;. 235, 236 

Birbeak, Pullen 1;. 475 

Bifhop's Hatfcldt the King «v. the InhM" 

habitants of'^gi 
Black *£;. Peele, o. 248, 249 
Blackett, Saville a». 293 
Blackwcll <v. Naüi, 686 




ftake, Pcrrin v. 342, & n. (/)# (^)» 

(0* W»343>^n. [3] 
Bland 'u. Hafdrig, 652, 653, n. [1] 
— , Robinibri'z;. 743 
Blandford 1/ Andrews, 693, 694 
Blantern« Collins <z/. 96, & n; [ 1 1 ] 
Blencoe, Crufoe Leßet ofy v% Bugby. 

S7, 183, 184, 185 
Bliflcl, the King v. o. 398, & n, [22] 
Blundwell i«. Lovcrdcli, 453 
Bodily ^u. Bellamy, 7531 n. 
15v)dy <v. TaflTel, 236 
Boehm, Carter 'v. 753 
Bogg 1;. Rofc, 7 1 , n. {fw) 
Bois v. Bois, 377, n. [11] 
Bolney, Shermandbury «v. lo» n. 
Bolton, Roe, Leßee of Callth-w ^ others, 

<v. 760, 761, 76z, n. [1], 763 
Bond «v. Gonfalez, 368, n. 
V. Nuit>o. 35«, 364, 36c, 367, 

n. to 370, D. 785, & n. [ij, 786, 

— 1;. SeawelJ, 37 
Bones *v. Booth, 706, n^ [4] 
Booreman's Ca/e, 354, 355, & n. 

Booths/. Z«r// Warrington, 656 
— — , Bones *i;. 706, n. [4] 
Borafton's Ca/e,y^^ 
Bofanqaet o^. Daihwood, 698, n. 
Boftock, the Earl e/* Pembroke, *v. 7 J3> 

Bofworth 'V, Philips 1 72, n. [7] 
Bothenham, Archer <z/. 126 
Bott, 0/. Brabalon, 143 
Boulogne a;. Vautrin, 0. 467, n« & f 

Bowles a;. Bradfhaw, 4, n. [i] 
— — , Billers <v, 316, n. [2] 
■ , Coan «v. 709, n. [2], 752, n. 


Bowton v. Nxcholls, 752, n. [3] 

Bowyer«i/. Bampton, a47in. [i], 741, 

^ 74*» 743» 744 
JBoyall, the King «v. 156 
Brabalon, Bott 1;. 143 
Brace, Leigh «v. 323 

• •', Penoycr *v. 637, n. [i^ 

Bradfhaw, Bowles <i/. 4, n. [ 1 ] 

■- V. Fairholme, 170, n. [13] 

' , Lc Fevrc «v. 368, n. [i] 
* 9 H^chardfon <v. 170^ U n. 

V«t» I. 

Bramfhaw, the King^ c /^^ InhahitariXi 

Brampton nj. Crab, 24 j, n. [2] 
Brandon, Wangford v. 9, n. [2], ic> 

Brathwaite's C^y?i 159 
Bree, Roe LeJJee of, *v. Lees, 206 
Brereton, the Aitorncy Ge/teral v. 143, 

Brett 1;. Rigiicn, 339* n. (c), 340, 

Brewer, Rakeflraw, v. 354 

Brewfter v. Kitchen* 625, 628 

Brian a/. Thorn, o. 59, 60 

Brice *v. Carre, 766 

Bridgeford, the King a>. /i&/ InhahttantS 

£A 70>7* 
Bridges 1;. Raymond, 678, n. [3] 
Bridge water, the Cafe of the Count^s ofg 


Bright V. Purrier, 55> & n. [a] 
Brightwell, Carleton *u. 205 
Brillow, Hanna, «i;. o. 59, 60 
Broadbent, Wilkes, *u, 205 
BrOmley> Smith> *u. o. 696, n. to 698^ 

Brooke v. Warde> 34 
Broom« theYlng v. 6o{ 
Brgome *u. Hoare, 184, n. [ei] 
Brown v. Franklyn, 605, 612, 6i&> n» 

— V. Fulfbye, 236 

— <i/. Heathcote, 104 

V. Thompfon,35> 37, 39 

, Pells V. 495, n. {c)i 756, ft 

, Richards v. T. 18 Gw. 3. 

o. 739, & n. (r), & + 159, 1 160 
Browne, Doe Leffee of v. Holme Csf 

Longmire, 265, 266, 505» n. 758 
Brownfword «v. Edwards, 496, 509 
Bruce's Cafe, 151, 154, 155, 15Ö, 

<;» Rawlins» 116,11. [i] 

Buckingham> the Duke of, v. Lord P^" 

trim, c68 
Buckland, Denhäm, the King> 'v, thi 

Inhabitants of, 33c 
Buckley V. Rice Thomas f 47$* n. [l] 
Bugby, Crufoe, Ltffet qf Blencoe, v. 57, 

183,184. 185 
Bullocks Coke <v. 34 
Bunker <i/. Cooke, 36 
Bunter «v. Coke> 714 

i» Burbffcki 


Barbreck, Bellafis «z;. 457, 461 
Burden» Doe, Lt^ 0/, <i/. BurviUc/ o. 

53.n. [16] 
Burdus, Peyton V. 71 
Bordwick» Oland *ü. 205 
Burfield, Baxter «v. 70 
BurahaiD, Ford v. 228, n. (a) 
Burrows, Bell <v. 403, n. {m) 
Bortenfhaw a;. Gilbert, o. 36, 40 
Barton v. Thompfon, 255 
Burville, Doc, Leße of Burden^ v. o. 

53,n. [16] 
Burwafli, Soddlecomb v. 663, 664, n. 


Bury, /ifirKing n). o. 194, & n. [26] 
Butler v. Swinnerton, 45> n. [i] 
Buxenden *u. Sharp, 684, & n. (^z) 


Cadogan, Wright v. Lflr^, o. 53, n. 

Caalow, Ä^r, £(;^^ of If. Bolton, 760, 

761,762, n.[i], 763 
Cambridge, Aflievedo «l». 617, n. 
■ ■ — , //^/King, 1;. tbt Corporation 

eT» 400, 401 

, the King V. /i&tf ^/V/ Chan" 

cellor^läc.of 535, n. [l] 
Cameron «v. Lightfoot, 074, 675 
Campbell <v. Hall, o. 4, & f 
Canning ( EUxabtth' s ) Cafe^ 763 
Carleton «z;. Brightwell, 205 

■ ■ > L<;^^ rfGrißn, <v. Griffin, 38 
' ■ '» Doc «v. 494, 496 

Carliflc, the King v, the Parijh Oßcers 

Carpenter, Pixts V. 245, n. [23,448, 


Carr, Hill v. 27, 766, & n. [i] 

*— », HolHs <v. 776, ^ n. [i] 

Cvre, Brice v, 766 

Carrnthers, Sparrow v. 276 

CarHialton. tu King a». //&/ Inhabitants 

4if 226, &+, 227tf 543 
Carter a;. Bamardiflon, 499, n. 505, n. 
' a;. Boehm, 733 

■ *v. /i&f Royal Exchange AJftaance 
Company t i?» 365, & n, (i) 

■' ; 1;. Murcot, 444 

» * t Goodright, Leße of v. Stra- 

than, o. 53, n. [17], 54, f *7 
Carver. /7a'<f Karver 
Carwardine^ Trump er «v» o. ao2> 2c6 

CafUechurch, /i&^King«/. tbi InbatiU 

ants of 392 
Cafwall, JJjT parte ^ 45 
Cafwell, Ex parte t 165, & n. [10] 
Catlin <v. Müner, 330 
Gator, Hare a;, E. 18 Geo. 3, o. 185, 

& t 58, 184, &n. [21], 186, 484* 

&n. [1] 
Champemon *v. Champeraon, o. 625 
Chapman a;. Flexman, 218, n. [n]« 


, Forth, V. 449, 503 

, Walker, 1;. o. 471 

Chamock v. Worfley, 45 
Chafe, Lewis nj. 696, n. 
Cheddington, the Cafe of the Reßor of^ 

Chefhyre 'v. Dunball, 444 
Chefter, the King «v. the City of 84 
Chcfterfield, the Earl of a;. Janfen, 74« 
Chichefter, the King <ü. the Mayor of 

136, &n, (^),I37 
Child, Edwards 1;. 277 

, Walmfley <v. 635 

Cholmley's Cafe, 755 

Chriftopher <v, Chriftopher, 35, 37, 

38, 39 
Chudleigh's Cafe, 755, 776, n. 
Clapham, the King «i;. 154 

-, the King «u. the Inhabitants ofi 

Clark «y. Glafs, 4^1 

a;. Shee. 0. 698, n. (^;, & f 147 

Clarke, Taylor 'u. 199 
Clay 1;. Sudgrave, 102, & n. [i] 
Clayton 'z;. Simmonds, 291 
Cleg, the King 'v. 633, n. [1] 
Clegg's Cafiy 180, & n. {p) 
Clerke, Lynch <v. 594, n« 
Clifton v. Jackfon, 491 

, Dickfon 'v. 677, n. [i] 

Clinkard, Bachurfti». 651, n. 

Clough, Stihbs 1;. 214 

Coan «v. Bowles, 724, n. 709,11. [i]« 

752. n. [3] 
Cock «v. RatclifF, 96 
Cockeril, Symonds, «v. 739 
Coffin, Short 1;. 115, n. [1] 
Coke a;. Bullock, 34 
— , Bunter *z/. 714 

9 Lenthal «i;. 96, 07, n. [12] 

Cole V. R^awlinfon, 36, 762, 764 
— , Reedv. 386, n. [17] 




Collcy, Hickmao v. 245, n.- [2] 
Collins V. Blantern, 9^ , & n. [ 1 1 ] 
" , Belchicr v. o. 22 

CoUyer, Fox v, 573 
Colthirftr. Bejufhin, 755 
Conil>c V. Pitt, 16, & n. (/) 
Commyn v. KinAo, 305, 8c n. {i) 
Com yns, Morrough v. 647, n. [ i ] 
Conefbiev. Ru(ky, 716 
Coney, Sucklingc v. 693 
Cook V. Cook, 323, 432 

V. Harris, 4^, 458 

pooke V, Saycr, 678, n. [2] 

— , Bunker v. 36 

Cookfon, Leffee of Rous, v. Rous, o. 

Coombe v. Weftwoodhay, 440 
Cooper, Raft 1;. o. 87, k f 38, 88, 

Connick, Mather v. o. 59, 60 
Comiih, Goodrighc v. 493, 496 
Coryton v. Lithebyc, 218, n. [11], 

221, Sc n. [12] 
CouUbo V. Coiilfon, 337 inMarg, 340, 

^ 34'» 342' 343» 344 1 90. 345 

Coultfbourn, South Ccritey v. 440 

Cozen's Cafe, 498 

Crab, Brampton v. 245, n. [2] 

Cranmcr's Ca/e^ 491, 492, n. [i], 497 

Cranvell v. Saunders, 34 

Crawford v. Powell, 83 

■ — V. Whittsü, o. 4* & n. [i], 

to 5, n. 
Cremer «0. Dent, 108 
Croafdale, Gardiner v. 732, n. 8c n. 


Cromwciri Cafiy 45 

— , Tavcrncr V. 729 

Crofl>y, LorJ Mayor of London, the 

Cafiofy 156 
Croficombe, the King v. tbi Inhabit- 

ants of 309, 400 
Cmfoe, LeJJee of BUncoe^ v. Bügby, 57, 

183, 184, i8c 
Cudlip V. Rundle, 668 
Camberford's Cafe^ 570, 571, 574 
Cutler, Snow v. 491, 497, 501 

Dacres, the Cafe of Lord, 211,212 
D^ntry, Penriz v. 295, n. {h) 
Dalton (or Hchart) v. Hammond> 725, 

n. 729, 8c n. (f) 
Daniel v. Ubley, 45 
fianal, tb$ jung «. 663. 

Dafhwood, Bofanquet v. 698, n« 

Dauling, MafTa v, 739 

Davies v, Norton, j-j, 78, & n. [8], 

505, n. 
, Haywood v. 06, n, 429, n. 


, Sir John Ratcliff v* 644 

Davis V. Leving, 256 

Davy, Doe, L^ee of Pate, v. 0.716, 

&n. [2], &t 151 
Day «. Savage, 126 
— — , Houghton V. 214 

, WUfon V. 91 t» 296 

Deerly v. /i&^ Duchefs of Mazarine, 

253, n. {a) 
Deezc, Ex parte ^ 103 
Demattos, Kayc v. 217, n. [i] 

, Swaine v. 165, & n. [9], 


-, Worfl^y V. 87, 88, 91 f» 

Den, Lfffee of Earl Stanhope, id. Skcggi, 

o. 184, n. [20] 
, Leffee of Gafiin, v. Gafkin, 0« 

760, 763, 764 
Dent, Cremer, v. 108 
Derby, the King v. /i6/ ilf^iy^r ö/", 80, 

De Roven, Duplein v. 4, n. [1] 
Deflaux v. Hood, 63, n. [2] 
Devallar, the Executors of, v. Herring, 

Dcvcnifli V. Mertins, 308 
Dey ton's Cafe, 154 
Dickfon v. Clifton, 67^, n. [1] 
Dike and Dunflan^s Cafe, 749 
Dive V. Manningham, 97, n. [12] 
Dixon V, Plant, o. 199, n. [i] 
Dodderidge, Startup v. 204, 205 
Dodwell, Auften v. the Executors of 

Sir IVilliam, 688, 693 
Doe, LeJJfee of Burden, v, Burville» O. 

53, n. [16] 

V, Carleton, 494, 496 

, Leßc of Patcj V. Davy, o. 716, 

& n. [2], and f 151 
— , Lefjee of Brvwne, *v. Holme H 

Longmirct 265, 505, n. 758 
, Lefce of Bach, v. Putt, o. 773, 

&n. [i], 775, &n. [2], 778,779 
, Lcjce of Barnard, v. Reafoo, 

, Lcjee of fratfon, v, Routledgc, 

0. 716, n. [i], 8c f 152 
*— — w. Snowdcn, 237, n, [7] 

b 2 Doe, 

rxxvi lUDJLX OF CASES CITED, (sfc. 

Doe, Leßi of QdiarrUt *u. Whitehead, 

Doncaftcr, tie King *u, the Mayor of. 

Dormer i;. Fortefcue, 4S4 
Dowlcr, Higgins r. 505, n. 
Dunball, Chefhyrci;. 444 
Dancoinb> the South Sea Company, <y. 

Duncoxnbe v, Duncombe, 343 
DuplciD«cr. De Roven, 4. n. [i] 
Dutch ^^ InMa Company, Hcnriques 

Duttonv. Poole, 144, 146 

Fades, Woodford «m. 51a, n. [a] 
Earle, Sir Thomases Caff, 80, & n. (r) 
Eall In^/ta Company, Edwin v,^the, 277, 

&n. [1] 
Ebizfon, Holroi 'z;. 752, n. [3] 
Eden, RadclifFe v. o. 701, Sc f 148, 

705, 706 
Edge, Scattergood v, 493 
Edwards v. Child, 277 

■ V, the Countefs of Warwick, 
776> n. 

•— , Brownfword v. 4^6, 509 

, Floyer v, 740 
Edwin V. the Eaft India Company, z'j'j, 

Eels, Adlon v. 61 
Egglesfield, Ridley r . 604, 6 1 2 
Ellun 1;. WalleU, 728 
*- -;- , Pinbury v. 499 
Ellesiield, the King v, the Inhabitants 

of o. 310, &n. [1] 
Ellis V. Wall, 316, n. [i] 
— <». Warncs, 742, 744 
Errington, Penruddock v. 7c 2, n. [3] 
Ethcrington, Tierney *v, 368, n. (/) 
Ewer, Pawfon v. o. 11, n. [5], 12, 

n. [4], 13, 261, 262 
Ex parte Bearcroft, 200, n, 
— — Belton, 521 

■ X Cafwall, 45 

■ ■ Cafwell, 165, & n. [lo] 
■■ Deeze, 103 

■ ■ Greenway, 165 
■* ■ ■ Groome, 165 

■> Lc Compte, 521 

■ Michell, 165, 166, t 55 
■' Shanks, 103 

■ Winchefter, 524 

Exetei, the Citj of, v. Glyde> 155» 157 

Exeter, the Mayor of, v, Trimlet, Jigi 

Eyre *i/. Eyre, 35 

Fairholme, Bradfhaw, v, 170, n. [13} 
Falkland, Bertie, ^j. 36 

, Lytton, n), Ladyi 36 

Fall, IngUs, v. o. 646, & n. (a) 

Fandrye, Miller v. 'j^-j 

Farmer, Green v, 103 . 

Fawkencr and another. Executors of 

Middleton, Swayne v. 762 
Fen V. Alfton, 430 
Ferguflon, TheJluiTon v. o. E. ijGeo^ 

3.. 364, 366, 367, n, 369, n. 370, 

•u. Sc * 
Fifehead Magdalen, the King v, the 

Inhabitants of , 310, & n. [l] 
Filewood 1». Popplewell, 60 
Filher, Anthon v. o. 649, n. [i]y 

650, n. 
Fletcher 1». Bathurft, 100 
, Tvrie v. o. 5^7, 5^8, 784, 

& t Ji68, 785, 790 
Flexman, Chapman v. 318, n. [11]» 

Flcyer v, Edward», 740 
Foden v, Haines, 95, 6c n. [10] 
Fogofla, Reniger V. 130 
Ford 1». Burnham, 228, n. {a) 
Forfe V. Hembling, 35 
Forfyth, Stone v. T. 22 Geo, 3, o. 

709, n. [2] 
Fortefcue, Dormer v. 4B4 
Forth V, Chapman, 499, 503 
Fofter V, Wilmer, 17, 365, & n. {d) 
Fowler, the King v. 415, 416, & n« 

Fox V. Collyer, 573 

, Lanefborough v. 492, 500, 503^ 

Francis's Cafe, 212 

V, Mott, o. 634 

Franklyn, Brown «i/. 605, 612, 6iS, n# 
Frafer, Sinclair v, 0. 4^ 5, n. 6, 
Freeman v, Gwyn, 263, n. [l] 

, Paifons «v. 719 

Freemantis, Raincock *u, o* loi, U 

French, Abfor v. 746 

Frenche's Cafe, yi6 

Fulham, Andrews v, 66, & n. 49^3 

Fuliarton, Watts v. o. 718, 719 

Fuller or. Fuller, 339, n^ (r), 340, n# 

W> 345* n- „ .^ 


Fulfbye« Brown t;. 236 



Gardiner «v. Croafdale» / \2, n. Sc q. 

Gardners. Jeflbp« 3S1 

Garnet, Shuttleworth i« 728, 11.(3], 

729, &n. [3] 
Gafcoyne (^^/r Crj/^^ the Caft of, o. 

Galkin, />/», Z(^^ 5^, v. Gafldn> 760, 

Cateward 's Ci;^> 126 
Gaunt, Target v. 499 
Gautris, Norris v. /i6f Hioidred of^ 

Gell, Rowlls V. o. 304, & n. [i] & t 
, Geroiain, Lepara v. 136 

Gerrard, Pollard v. 629 

Gibfon, tbt King v. o. 377 

Gilbert, BurtenSiaw «/. o. 36, 40 

Gill, tbt Attorney General v. 267, n. 

Gimbert, Shaw a/. 68, & f 33, 69 
, Glafcock, Shires or. 242, 243^ 244 
' ■ , Took V. 329 

Glafs, Clark <u. 43 1 

Glazier, Goodrigbt Lejfet of^ v. Gla- 
zier, 40 

Clyde, ibi City ^Exeter v. 155, 157 

Goddard <i/. Vanderhyden, 16c, n. 


Confafes, Bond *u. 368, n. 

Goodman t/, Goodright, 490, 497, 
500, 502, 507, & n. [3] 

Goodright *v, Cornifh, 493, 496 

— — , L(fffe of Wynne ^ *u. Hum- 
phrys, o. 52, Sc "• [h] 

^ , JLefie of Gla%ier, *u. Gla- 
zier, 40 

J Lejfee of Carter ^ v. Strathan, 

o..53.n. [17], 54t27 

' — *v. Wright, 339, & n. [ij 
- , Goodman v» 490, 497, 500, 

502, 507, Sc n. [3] 
Goodwin «v. Goodwin, 433 
__ V. Weft, 558, n. [i], 559, 

560, n. [4] 

, Turner v. 638, 689, Sc n. 

Gordon «v. Moriey, 74 f 36, 368, n. 

Qorc a;. Gore, 496 
Goring, Hickman *v, o. 308 
Pofs V. Wither?, 232, 233, Sc n. (x'), 
6^7, lU 

Grant, Aftle «v. B. R. T. 22 Geo. 3. 
o. 731, n. to 732, n. 

a/. , C. B. o. 724, n. to 

727, n. 

v. Vaughan, 634 

, Bayl^ If, 102, 540. 

Grantham a/. Hawlcy, 204, & n. [3] 
Gravefcnd, the King v. the Inhabitants 

of, 664 
Green v. Farmer, 103 
— — , Newcombe'i/. 377 
— — — , Rann or. o. 10, n. & f 5, 

402, & f 98, 406 
Greene, Harbin a;. 241 
Greenway, Ex parte ^ 165 
Griffin, Carlton, Leffee of, «i;. Griffin, 

Griffiths, Roe v. 7 1 7 
Groome, Ex parte, 165 
Grunwell and Winjhip, //^/King v. 333, 

n. [i] 
Gulliver a;. Wicket, 65, 499, n, [2] 
Gwin, Olive v. 4 
Gwyn, Freeman v. 263, n. [i] 


Hackney, Saint Gileses Cripplegati v. 

Hague V. RoUeftpn, 296 
Haines, Fodcn 1;. 95, & n. [10] 
Hall, Campbell v, o. 4, Sc f 
Haman <u. Truant, 429 
Hamilton <u. Mendez, 14, 232, 233 
Hammond, Hobart (or Dalton) v» 

725, n. 729, Sc n* (f) 
', Righto;. 492 
Hanbecke, the Cafe of Martin Van, 236 
Hanger, the King and Waller v. 122 
Hann, the King o». 589, & n, («) 
Hanna or. Briftow, o. 59, 60 
Harbin «v. Greene, 221 
Hardinge, Murray <v, 740 

, Widlakc «i/. 322 

Hare v. Cator, B. R. E. 18 Gr<?. 3. 

o. 183, & t 58, 184, & n. [2i j, 

x86, 484,^ n. fi] 

, Arton 1;. 66 

Harris a;. Barnes, 494., 496,499, 502 

*v, Okc, 651, & n. [ij 

, Cook «i;. 457, 458 

Harrifon v. Sharp, 205 
Hartop 1;. Holu 351, 352 
Harvey, Havithbury v. 559 
Hafelrig, Bland v. 652, 653, n. [i] 






HafTard, Rons v. o. 598, 602, 603, 

& n. [x]> 608, 611 
Hailings, Heylin v. 652 
Havithbury V. Harvey, 559 
Hawkins, White, Lejfee of IrP'hatley, v. 

23, n. [7], &t> 281, n. {d) 
Mawley, Grantham *ü. 204, & n. [3] 
Hay ward. Page v. 65, 756, n. 
Haywood 1;. Davics, 96, n. 429, n. [i] 
Haxhay, Stallingburgh «v. 663, 664 
Hearing, Webb «v. 266, 268, n. [1] 
Heathcote, Brown «v. 104 
Heaton, Little a;. 485 
Heley V. Rigs, 1 15, n. [i], & n. (</) 
Hembling, Forfe t/. 35 
Hcmings v. Robinfon, 652 
Hemlington, /^^ King «z;. tht Inhabitants 

of, o. 9. n. [2] 
Hemming, Long <v. 281 
Hcnn's Ca/f, 746, 747 
Henriqucs v. the Dutch ^"eß India 

Company 9 1 1 5 
Henfloe's Cafe^ 545 
Hereford's Cä/j, 80, n. (^), 82 
•— , /i&f King <v. /^r Ai^^ £/; 

M^t 181 
Herring, /i&tf Executors of Devallar a;. 

Hefter, Bellaiis nf> 464 

Hcydon v Heydon, 379, 651, n. [1] 

Heylin v. Adamfon, 635 

«V. Bailings, 652 

Hickman v. Coiley, 245, n. 
* V. Goring, o. 308 

Higgins V. Dowler, 505, n. [2] 
Hiliv. Carr, 27, 766, & n. [ij 
— — , the King «v. 83 
Wnckfworth, the King v. //^ Inhabit- 

ants of o. 46, & n. [13] 
Hitch v. Wallis, o. 729 
Hitchin V. Stevens, 6rf 1 
Hoare, Broome a;. 184, n. [21] 
jiobart (or Dalton) 1;. Ha 

725, n. 729, & n. (r) 
" , £tfr^ Stamford v. 475 

Hoddefdon, Jackmano;. 725, n. 726, n; 
Hodges v. Steward, 635 
Hodgkinfon n/. Wood, 501, & n. {a) 
Holdipp V. Otway, 316, & n. {a) 
holland v. Jackfon, 45 
Hollis «j;. Carre, 766, in. [i] 
Holme and Longmire, Doe, £(^/ c/* 

Brcwne v. 205, 505, n. 758 
Jlolmes, Poultiity 1/. 183, 184,188t 
Holroi V. Ebizfon, 752, n. [3J 


Holt, Hartop a/. 3 5 1 > 3 5 2 

Hood, Deflaux 1;. 63, n. [2] 

Hooke V. Moreton, 540 

Hoole, Avery v, o. 683, Sc n. [i], 

& t 143 
Hopkin, Matthews v. 678, n. 

Hopkins «i;. Hopkins, 340, & n. (^), 
492, 494, n. [l], 496, & n. (^), 

Hopwood 1;. Barefoot, 626, 628 

Hornfey, Shute t;. o. 668 

Horton, Wilmot *v. o. 700, 701, 702, 

& 0. [3]. 7<=^5' 70Ö' 707/ 1^- (^) 
Houghton «u. Day, 214 
Hubbard csf Key 'v, Pearfe, o. 606 to 

608, & n. [ij, 619, n. 
Hui(h «v. Philips, 429 
Humphrys, Goodrighr, L(fee efWyn^, 

'u. o. 52, Ä: n. [14I 
Hunt 1/. Singleton, 567 

, Argyle -i;. 379, 380, n. 

— — , tbei\r\g*u, o. 6S3, n. [1] 

Hufband, Pollen 'v. 35 

Huflcy n;, Jacob, 742, & n. [i], 743, 


, Beviflon a;. 766 

, Sanders v. 329 

Hutchinfon, Mayor cf Carliße, the King 

•^- '53 
Hutton 'u, Simpfon, 339, 340, n. {e) 

Jackman v. Hoddefdon, 725, n. 726, n. 
Jackfon, Middleton *v. 726, n. & n. 


, Clifton V, 473, 677, n. [i] 

, Holland *v. 45 

Jacob, Hußey a;. 742, k n. [i]>743« 

James, theY^m^'v, 751, n. [2] 
janfen, the Earl of Chellerfield a». 740 
Jarvis, the King 1/. Maurice, 346 
Ibbctfcn 1;. Beckwith, 434 
JeHery (or Jefcrjs) <v. Legender (or 

Ugendra), 74, n. [7]^ 
JefFerys ^ Srjjan, the King v. 240, 

n. (0, n. (/) 
Jennings, Nottingham v. 267, n. [1] 
Jennifon, the Kii>g *i;. o. 390 
Jenkin V. Piichard*, 483, n. [ij 
JeofFereys, Mountague 1;. 34 
Jervoyfe, Aufttn. v. 692,693,694 
JefTop, Gardner«;. 381 
lnglet©n, the K'ng:*.v. the Inhabitantt 

e/^* 770, n. [ij ' v^ 




Inglis nj. Fall, o. 646» & n. («) 

Johnfon ni, Lee, 629, n. [1] 

- V. Smith, 6a, t 3^» ■**» "• 

JolifFe, Lowe v. 140 
Jones V. Barkley, o. M. 22 G/». 3. 

695, n. [31, to 698, n. 
Jones V. Weftcomb, 65, 79 
— , Lloyd v. o. 213, n. [10] 


Karver, Baldwin «v. 0. 494, 499, '502 

503, & n. [i], 504, n. & 1 107 
Kayc v. De Mattos, 217, n. [i] 
Kempland, Perkins «v. 100, 397, n. 

[21], 522, 524 
Kenyon v. Berthorn, o. 12, n. [4] 
Key \£ Hubbard «t;. Pearfe, o. 606 to 

608, & n. [i], 619, n. 
JCillet, /i^King<v. 487, n. [i]« 
Kiliingfworth, Lancafhtre <v. 686, 693 
JCime, Luddington <v. 265, 266, 499, 

n. [2], 505, n. 754, 757, 758 
Kindo, Commyn «i/. 305, & n. (^) 
Kinfare v. Kingfwinfbrd, 564 
King <z/. Melling, 433, 496 
King (the) v. the Mayor of Abingdon, 

83> »54' >S5 
^. Bi 

a;. Barnard, 536 
"o. Beech, o. 194, 

h n. 

[25]' & t 

V. the InhahltanU of Bifhop's 

Hat f eld ^ 391 

'v, BlilTel, o. 398, & n. [22] 

«v. Boyal, 156 

«v. /itr Inhabitants 6f Bram- 

fhaw, 564 

V. the Inhabitants £/^ Bridge- 

ford, 70, 71 

1/. Broom, 605 

*v. the Inhabitants of "ÜMck- 

hiTid 'Denham, 335 
■■ a;. Bury, 194, Sc n. [26] 

0/. /it* Cor for at ion of Cam- 

bridge, 400, 401 

0/. /it* Fife Chancellor, &c. 

5f Cambridge, 535, n. [i] 
^. the Parip Oßcers ofQzi- 

Bflc, 33«» 33* 

v, the Inhabitants of Car- 

ihalton, 226, 564 

v. the Inhabitants of Caftlc- 

cborch, 392 * 
— .— . V. the City ^Chefter, 84 

King (the) v. the Mayor of Chicheier, 

136, & n. (^), 137 

■■ 1/. Clapham, 154 
«v. /i6^ Inhabitants of Qapu 

ham, 71 

1;. Cleg, 633, n. [i] 
■ n;, the Inhabitmtts of Cxt>6-> 
combe, 309, 400 
■ 1;. Damaif 633 

V. /Ar A%0r flJT Derby, 80, 

n. (.0 


v. the Mayor of DcocnSbcr^ 

If, the Inhahitattts of EBes« 
field, o. 310, & n. [1] 

«v. the Inhabitants rf Fife« 

head Magdalen, 310, & n. [1] 

V. Fowler, 415, 416, & n. 

V. Gibfon, 377 

a;. /^ Inbabiiwsts ff Grvre^ 


fend, 664. 
*w. Grmiwell (sT Winfhif^ 

333» n- [0 

& Waller *o. Hanger, 122 

1/. Hann, 580, n. {a) 

— — «I/, the Inhabitants of Hem« 

lington, o. 9, n. [2] 

«v. /^* Mayor of Hereford, 
179» >8i 
v. HiU, 83 

V. the Inhabitants of Hinkf- ' 

worth, o. 46. & n. [13] 

v. Hunt,o. 683, n. [1] 

1;. Hutchinfon Mayor of Car* 

life, 153 

*v, James, 751, n. [2] 

<i;. Maurice Jarvis, 346 

'u, JefFerys ^ ^w«», 240, 

n. (^), n. (/) 

«v. Jennifon, o. 390. 

■ 'v, the Inhabitants of Ingle* 

ton, 770, n. [1] 
cy, Külct, 469, n. 487, n« 


v, the Duchefs of Kingfton, 
4. n. {b), 5, n. {h) 

1/, she Inhabitants of King's 

Norton, 335 

. *u, Lambert, 82, 83 

a;, the Inhabitants of Lam- 

beth, 405 

a;. theMayor ^LiverpooU 155 

V. the Inhabitants of hKm^9 

657,658, &n. [i], &t«3S 

b 4 King 



fing (the) v. Loxdalc, 349, n. [z] 
■ ■ V. the Mayor of Lynne, 82, 

85* IS4 

«V. /i&ff Inhabit ants ^Maccles- 
ficld^ 335 ' 
■ v. Mann, 112, n. [13] 

V. //^^ Inhabitants cj iVlar- 

wood> 770, n. [i] 
■ *i/. Meffei.ger, 210, 211, 



. V. the Jtfßices of MidJlefex, 

V. the Uhabitants nfy[\üQ.h- 
itihaxnpton, 663 
I «v. Moore, 240, n. {e) 

■■ ■ li - ■ V. Morcly, 549, n. [i] 

«I/, the Inijahiiants of Nat- 

land» 631, 632, 770 ^ 

*v. the Inhabitants of Navc- 

üock, 440» 441 

■ '■ 'y. .the Mayor of Ncwcaille, 


V. the Inhabitants cf N'cw- 
ilead, 440» 441 

— *i/. ttjc Inhabitants of New- 

ton, 440 
>»■ *;:;. Nudigate, 666 

- «u. /Z»fc' Inhabitants />/ Painf- 

wick, 631 

r . «V. Sir Henry Penricc, 82 

■ *!/• Pcrcivai, 191, n. [2^] 
■ «v. PerkaJFt:, 662, 663, 664 

■ *:;. Plymouth, c». 243 

V. Poland, 308 

V. the Inhahiiimts of Preflon 

near Fetn)erjham^ 660 
— — — v. Purnell, 240 
—— <v. Rebow, 118, & n. [2] 
■ ■ 1;. Richardfon, 80, & n 

W> 153» M4' '55' *57» "59> ?8o 
1/, /j^/ Inhabitants of Ring- 

wood, 563 

*i;, William Rogers, 81, n. 


■ ' ■ ■-* «y. the Churclywardens of Ro- 
therhithe, 117, n. (k) 
■■ ■ V. Royce, 210 

V. the Inhabitants of Saint 

^^«^■'* 335 

^. /i&* Inhabitants of Saint 

Gileses in the FieUs, 10, n. 

V. /iv Inhabitants of Sarrat, 


V, the Inhabitants of Sax- 

mundham« ^o, a, 

King (the) *v, Sewel, 743 
by, 418 

0/. the Inhabitants of Sower-« 

*v, the Inhabitants of Spot- 
land, 419 

a'. Stevens, 179 

*v. Swan & JefferySf 240» 

•y. /'!>i^ Inhahitant: of Sydec- 

ton, o. 441, n. [i] 

V. the Churchwardens of. 

Taunton Saint Jameses, o. 83, Ic 


" «y. /Z'f Inhabitants ö/* Taunton 

6"^/«/ il/rfry Magdalen, 418, 419 

' ■ «L*. /Z?f Inhabitants of 1 avif- 
tock, 71 

a;. Thced, 487, n. [1], 550. 
n, (a), 552 

»v, Tiddcrley, 84 

1;. Tiudall, 550, n. (ä)^ 


'V. the Inhabitants of Under 
Barro-Vi H. 6 Geo. 3. 310, & n^ 

■ *v, Vandcwall, 304, n. [i] 

«!•, Vaws, 536 

*u. the Inhabitants 0/* Walfall, 

o. 564, & n. [1] 
■■ '■ 1;. Wangfbrd, 10, n. 

1'. the Inhabitants of Warb- 

lin^ton, 622 

"v, Philip Carteret Webb, 239 

• — • i\ ike Corporation of Wells, ' 

• T'. the Inhabitants fr/'Weller- 

Icigh, 392, 393 

or. the Inhabitants of Weil- 

well, 440 

1;. the Inhabitants of Wcfl- 

wood, 662, 663 

' v. Whitehead, ijo 

c;. *the Inhabitants ef Wid- 

worthy, 631 

'V Wijliams, 583, n. («) 

*v. Winfliip & Cr unwell, 333, 

n. [i] 


»n;, the Inhabitants ^Witney,. 

— v. the Inhabitants of W^ood- 
)n, 333, n. \z] 
King's Norton, the King v. the Inhabit* 

fterton, 333, n. [2] 

n, the King «v. . 
ants of 335 

Kingfton v. Prcftonj 0. 689 to 691, 



Kingfton, tie King «v. the Duch^i of, 4, 

n. (i), 5, n. (^) 
Kingfmntbrdy Kin^re a;. 564 
kircon> Symfon ^. 34 
Kitchen, Brcwfter «i;. 625, 628 
Knapton, Scotts/. 352 
Knight, Savage a;. 6z 

I^e 1;. Billers, 42, & n. (/«) 

— v. Lake, 40 

Lambert's Ctf/#, 82, 83 

* , /-^ King V. 82, 83 

'■ , the King «i;. /i^tf Inhabitants of^ 

Lancaihire a/. Killingworth, 686, 693 
Lancafter, Poppam a;. 726, n. & n. 

Laneiborough <v. Fox, 492, 5C0, 502 
Langfield, Rogers «v. 40 
Langford, Price v. 776, n. , 
LangtOQ, Zink «v. o. B. R. T. 22 

Geo. 3. 751, n. [2], to 753, n. 
(laniclowne, Penphrafe a;. Lord» 36 
i«aw V. Skinner, 92 f, 93 f , 297, n. 

Leake, Workman 1/. o. 671, & f 


Lc Compte, Ex parte 5 2 1 
Ledger, Sands & Taß? a/. 666 
Lee, Johnfon a;. 629, n. [1] 
Leeds, Pugh *v. the Duke of, o. 53, n. 

[15], 185, n. [22] 
Lees, Roe, LeJ/ee of Bree, «i;. 206 
Le Fevre «v. Bradlhaw, 368, n. (k) 
Legender (or Legendra) «i/. Jeitery ^^r 

'Mreys), 74, n. [7] 
Leigh a;. Brace, 323 
— — , Stanely v. 494, n. («), 505, n. 
Lekeax a/. Nafh, 462, n. 
Le Mayne a;. Stanley, 242, n. {b) 
Lenthall v. Coke, 96, 97, n. [12] 
Lepara 'S/. Germain, 136 
Lethieolliet, Tracy v. 78. 
Leving, Davis 1;. 256 
Lewin, Sorrel «v. 682 
Lewis <v. Chafe, 696, n. 
rf , Moore v. 728 

, TaOcl & Zr^< 1;. 635 
— , Vaughan V. 157 ' 
(jightlbot, Cameron «v. 674, 67$ 
Lincohi, the Earl of^ v. Rolls, 35, 

'■' 7«5»7»9>72* 

jpindo a;. Rodney, o. 613, n. [i]> to 
* 620, n» 

Linn i?^^//, Tayk>r <i/. /i&^ ili^;)^ ^ 

126, 127 
Linton 1;. Bartlet, 87, 9i,f, 296 
Lithebye, Coryton a;. 218, n. [i], 

221, & n. [12] 
Little v. Heaton, 485 

, Powel 0/. 624* n. [i] 

Liverpool, the King nj, the Mayer ofp 


Livmgfton v. Mackenzie, o. 

Lloyd v. Jones, 213, n. [10] 

— If, Skutt, o. Ni. Pr. Ä^/^r M, 20 
Geo. 3. 63, n. [2] 

— v. Williams, 235, 237, 740 
, Parfons 1;. 674 

Loftus, Whitley 1;. 519, n. [2] 
London JJfurance Company^ Mottem; 

«v. the^ 368, n. 
, theBiJhop of, v. the Mercer'« 

Company t 753f> n. 
Long a/. Hemming, 281 
Loverdell, Blundwcll <v. 4i;3 
Loveday, Winter v. 570, 574 
Lowe V. JolifFe, 140 
Lowefs, the King v. the Inhabitants ef^ 

657,658, &n. [i], & t X35 
Loxdale, //»f King v. 349, n. [2] 
Luddington 1;. I^ne, 265, 266, 499« 

m [2], 505, n. 754, 757, 758 
Lugg v. Luge, 36, 39 
Lynch *u» Clerke, 594, n. 
Lynne, the King v. the Mayor of, 82, 

85, 154 
Lytcon a;. Z^ Falkland, 36 

Maberly v. Serjeaunt, o. 700, 701 
Macarty a/. Barrow, 55 f 28, 164, 

166 t 55 
Macclesfield, the King «v. the Inhabit^ 

ants of 335^ ^ 
Mackenzie, Livingflon «v. b. 599, 

Maddifon (Madiften or Meddifon) ns. 

Shore, 558, n. [2], 559, k n. (r) 
Mallory <i/. Bird, 235, 236 
Manchefter Mills, the Cafe of, 222, ts 

Mandeviile, the Cafe of John de^ 501, 

506, n. 
Maningham, Dive v. gj, n. [12] 
Mann, /i&^ King v. 112, n. [13] 
Manning o^. Napp, 545 
Mansfield« Phippardof. 53»n*[i6] 



Markham «i;. Middleton, 509, & n. 
[1], 510, n. [2] 

Martin v. Trcgonwell, 776, n. 

Marwood, the King it. the lab abit ants 
of, 770, n. [i] 

Mafia V. Dauling, 739 

Mather v. Cormick, o. 59, 60 

Mathews a;. Hopkin, (y'j'^i n. 

, Baynham a;. 429, & n. [i], 

Maye n). Archer, 377, n. 

Mazarine, Dcerly 1;. the Ducbr/s of, 
253, n. {a) * 

Meggoti;. Mills, 295, n. (b) 

Mefimg, Kingo/. 433, 496 

Mellor V. Spateman, 1 3 1 

Mendez, Hamilton «r. 14, 232, 233 

Mercer, Trapaud i'. 95 

Mercers' Company, /be Bijhop of Lon- 
don v. tbe, 753, n. 

Merricke, Lord Arlington «v. 214 

Mertins, Devenifh a/. 308 

Meflcnger„/i&r King 1/. 210, 211, 212 

Mitchell, Ex parte 165, 166 f 55 

Middlefex, the King a;, the JuJtUes of 

Mid*ücton V- Jackfon, 726, n. & n. 


tf->ji— > Markham «v. 509, & n. 

[x], 510, m[2] 

1 — — , Wynne v. 594, n. 

Miller V. Fandryc, 747 

«— , Morris V. 172, 174 

— 11. Race, 634, 635, 636 

Mill«'«'- Aftell, 214 

— ., MeggotT. 295, n. (^) 

Milner, Cadki^. 330 ^ 

Minchinhamptön, the King «v. /i&^ /«• 

habit offts of 66^ 
Mitchell V. Rodney, o. 620, n. $c 

t 126 
Mitford, Pibus 1/. 490, 492 
Molincux 1;. Molincux, 38 
Moore -v. tewis, 728 
— — «y. Parker, 491, 497, 501 
r-i— , /i&^ King V. 240, n. (^) 

, Stafford i;. 61 

Moreley, //&^King 'v. 349, n. [j] 

Morcton, Hook v. 540 

Morgan «i/« Scudamore, 726, n. & n. 


Mörcly, Gordon v. 74 f 36, 368, n. 

Morris a;. Miller, 172, 174 
— — V. Pagh, 62 t 30* 112, n. [13]' 

Morroagh v, Comyns, 647, n. [ij 

Mott, Francis 1;. o. 634 

Motteux *v, the London JJitranci Ccm* 

pany, 368, n. 
Mountague a/. Jeoffercys, 34 
Mountjoy's Cafe, 568, 571 
Muilman, Woolmer *v. 733, &n. [tj 
Murcot, Carter i;. 444 
Murray a;. Hardin ge, 740 

Nap, Manning *v. 54^ 
Napper n;. Sanders, 78 
Na(h, Btackwcll v. 686 
~, Lckeux 1;. 462, n. 

, Read V. 572, 573 

Natland, the King a/. /i6^ InbaiitäMiM 

of 631, 632, -70 
Navcftock, //»^ King 1/. /i&^ Inhabitants 

of 440, 441 
Naylor, ^«/ //?/», a;. Scott, 20c, & su 


Neale, Price v. 635, 640 

Ncdham, Lord Stamford v. 474, 475 

Nelc (or Smi/hJ, Turner C*f Cory i;» 

599, 601, 60*^, & n. (fl) 
Nevinfon, Stevenfon *v. 83 
NewcaiUe, the King «v. //&^ Maj^or '§f, 

Newcombe «d. Green, 377 
Newilead, the King <z;. the Inhabitattts 

of 440,444 
Newton, the King *v, the Inhabitants ofp 

Nicholls, Bowton v. 752, n. [3] 
Norris v, the Hundred of Gautris, 465 

1/. Waldron, 678, n. [5] 

North, Potter 1;. 126, 303 

Norton, Davies «v. 77, 78, & n. [8], 

505, n. 
Nottingham -t;. Jennings, 267, n. [l] 
Nudigate, the King *i;. 666 
Nutt,Bond V. o. 358, 364, 365, 367, n. 

to 370, n. 785, & n. [i], 786, 79d> 

Odiarne, Doe, Leße of v. Whitehead, 

Offley, Puller «v. o. 512 
Oke^ Harris «v. 651, & n. [i] 
01 and v. Burdwick, 205 
^ Olive at. Gwin, 4 
Opie, Peter at. 687, 693 
Otway at, Ramfay, 4 

, Holdipp V. 316, AT n. {a) 
* Oughton, 



Ongliton» Bagot v. 569, 573, 574 

— , ' <v, 569, n. (</) 

Oxfblrd» Roih 'v, the ChMncellor and 
Scbtdars ff» 537 

j^Page V. HÄ)rWard, 65, 756, n. 

, Smith *u. 253, n. («) 

Pabfwick» /i&r King a;, /i^; Inhahiiaxts 

•/, 631 
Parker v. Thackcr, 267, n. [i] 

, Moore V. 491, 497, 501 

Parkhurft, Bcrihgton 1;. 484, n. (a) 

Parris's C^, 351, 352 

Parflowe *v, Wcedon, 714 

Parfbns «». Freeman, 719 

— V. Lloyd, 674 

Partridge, Ball «i;. 549 

Pate, S«r, £<^f »f, <i;. Davy, 0. 7 1 6, 

Ac n. [2], & t *5i 
Patdfon «v. Banks, o. 165, & n. [12], 

166, & t 54 
Pawi'on t. Barnevclt, o. 12. n. [4 J 
— — V. Ewer, o. 11. n. [3], 12, n. 

[4], 13, 261, 262 
■ «i;. Sncil, o. XI, n. [3], 261, 

* v. Watfon, o. II, n. [3], 261, 

Paxton, Beech a;. 68, & n. [6], 69 
Pay's C«>, 494, -n. [i] 
Pearfe, Key Ö Huhhard nj. o. 606 to 

608, &n. [i], 619, n. 
Peart 0/. Weftgarth, 349, 350 
. Peele, Black nj, o. 248, 249 
Pells a;. Brown, 495, n. (c), 756, & 

^"•757>758' 0- [2] 

Felly 'V, the Royal Exchange Aßirance 

Company^ 368,. n. 
Pembroke, the Earl ofy a;. Boflock, 

^ 753» n- 

Penoyer <v. Brace, 637, n. [il 
Pcnphrafe «v. Zr^r^ Lanfdowne, 36 
Penrice, //>^ King «u. 5/> Henry ^ 82 
Pcnriz o;. Daintry, 295, n. (^) 
Penruddock v. Errington, 752, n. 

Pcpperharrow a;. Trtfnfham, 440 
Percival, the King «v. 191, n. [23] 

, Salmon <i/. 674 
Pcrkafle, the King 1;. 662, 663, 664 
Perkins 1;. Kcmpland, 100, 397, n; 

[21J, 502, 524 : 

■ , Aftlin nj. o. 485 
'•— — , Thufv. 732, n. ' 

Perrin 1/. Blake, 342, & n. (/), (i), 

(0> W» 343> ^n- [3] 
Perry, ii'hite Leß-e of^ <v, Beroc, O. 

53, n. [16J 
Pelhall, Allans. 253, n. {at) 
Peter ^. Opie, 687, 693 
Peyton *v, Burdus, 7 1 
Philips V, Smith, 115 

, Bofworth a;. 72, n. [7] 

, Hui(h 1;. 429 

Phippard<E;. Mansfield, o. 53, n. [16] 

Pibus *v, Mitford, 490, 492 

Pickin, Pvann *u. 0. 308 f 82, 406, 

n. [i] 
Pilkmgton v. Shaller, lZ6, 460, U 

n. [1], 462, n. 
Pillans a;. Van Mierop, 290 
Pinbury <v, Elkin, 499 
Pitt, Combe 'v. 16, ^ n. (/) 
Pitts ^. Carpenter, 245, n. [2], 448, 


Plairtow T. Van Uxem, 0. 5, n. 
Plant, Dixon 1;. 199, n. [ij 
Plymouth, r^^ King «v. 0. 243 
Poland, the King <i;. 308 
Pollard 1/. Gerard, 629 

V. Scoly, 235, 236 

Pollen *v, Hufband, 35 

Pomfret <v, Ricroft, 748 

Poole, Dutton «v. 144, 146 

Pope, Skinner v. 185, 669 f t3S 

Popham 0/. Lincafter, 726, & n. (^) 

Popplcweli, Filew'ood 1/. 60 

Portington, the Cafe of Marj, 45 

Pütter «t;. North, 126, 303 

Poultney «i/. Holmes, 183, 184, 188 f 

Powel «v. Little, 624, n. [ij 

Powell, Crawford ^v. 83 

Power 0/. Wells, o. 24, & n. [8], & 

t »3 
Pratt, Price v. 143 

Prefton »t-ar Feverjham, //&^King v. /i« 
Inhabitants of, 66o 

, K'nj;lton -v, o. 689 to 691 

, VVhitton *!'• 3>i> 352 

Price *v, Langford, 776, n. 

0/. Nealc, 635, 640 

— «v. Pratt, 143 

Prichärd, Jenkin «v. 483, n. fi] 

Pridgeon's (or lVood*s) Cafe, 6351 

Proufe's Cafe, 538 

Pngh <ü. the Duke of Leeds, o. 53, n» 
[151,185, n.r22] 

I , Morns 1/. 62130, 112. n. [13] 

i Pdlen V. Birkbcak, 475 




Puller V. Offley, o. 512 

PuUcncy, Walpole v. o. 248, 249, & 

n. [2], 250 
Purcfoy v. Rogers, 265, n. {a) 
f'urnell, the King v. 240 
Purrier, Bright v. 55, & n. (a) 
f Utt a»</ »//6^r/, Doc, L^^ 0/ Balch, 

-Ü. o. 773, & n. [1], 775, & n. 

IJ?J» 778, 779 

Qaeen (the) v, Townfhend, 550, p. 


■ ' ■ ■ v. Truebody, 157 
^— *v. Twitty, 8? 

Race, Miller «;. 634, 635, Ö56 
Raddiffe v, Eden, o. 701, & f 148, 

RadclyfFe, Roper a/. 770 

Rae, Scott /rW others, <v. 0. 787, & 

n. [iL 790 
Ramcock <z;. Freemantle, o. 101, & 

Rakellraw «i;. Brewer, 354 
Raley, Robinfon *v, 60, 96, n. 429, 

n. ri], 430 
Ramfey, Otway 'u, 4 
KandaU, Birdi;. no 
R9nn V. Green, o. 10, n. & f 5» +02, 

& t 9^* 40^ 
*^— V. Fickin, o. 308, f 82, 406, 

RatclifF, Sir John, v. Davies, 644 

Ratcliffe, Cock a/. 96 

Rawlins, Bruce a;. 316, n. [1] 

Rawlinfon^ Cole v. 36, 762, 764 

Raymond, Bridges «i;. 678, n. [3] 

Read «v. Na(h, 572, 573 

Reafon, Doe, Le^ee of Barnard, «i;. 

267, 757 
Rebow, the King v. ii8, & n. [2] 
Redllone, Rutter a/. 352, n. [3J 
Reed V.Cole, 386, n. [17] 
Reeves, Walker v. o, 461, n. [i], to 

Regina. Vide the Queen 
Renigerv. Fogofla, 130 
Rex. Vide the King 
Reynolds, Aillcy v. ^98, n. 
Rice Thomas, Buckley v. 475» n. [1] 
Richards v. Brown, o. T. 18 Geo, 3. 

739, &n. (0»& t 159» t »6o 
Richardfon v, Bradfhaw« 170, & n. (^} 

Richardfon v. Yardley, 432, & n. (4^) 
, the King «y. 80, & n. (^) 


, Scclgwick v. 1 1 5 
— — — , The Smelting Company v, 

304. n. [i] 
Ricord v. Bettenham, 643, 644, 64$« 

647, 648 
Ricrpft, Pomfrett v, 748 
Ridley v. Egglesfield, 604, 612 
Rigden, Brett v. 339, n. (r), 340« 

n. (.) 
Right at. Hammond, 492 
, tejfee of Shaw, v. RulTell, o. 761 . 

Rigs, Heleyv. ii5,n. [i], &n. (</), 
Ringwood, the King v. the Inhahitantt 

Robinlon v. Amps C§r .4mtf)^ 27 

V, Bland, 743 

V, Raley, 60, 96, n. 429, n« 


, Hemings v. 652 

' , Wilfon 1;. 434 

Rodney, Lindov. o. 613, n. [i], to 

620, n. 
, Mitchell V. o. 620, n. S^ 

t 126 
Roe, Lfjfee cf Callo^w and others, v, 

Bolton, 760, 761, 762, n. [1], 76^ 

V. Griffiths, 717 

, Leffee of Bree, v. Lees, 206 

Rogers V. Langfield, o. 40 

V. Rogers, 1 7 

, the K\ngv.PViIiiam, 81, n. [9 J 

, Purefoy V, 265, n. (a) 

, Sandford v. 43 1 

Rolls, /^^ ^Är/ ^ Lincoln V. 35, 715, 

Rolleilon, Hague v. 296 
Roper V. RadclyfFe, 770 
Rofe, Bogg •«. 71, n. (w). 
Rotherhithe, the King v. the Church^ 

^wardens of, 117, n. {^). 
Roubell, Thomfon v. o. 467, n. 
Rous V. HaiTard, 0. 598, 602, 603, 8c 

n. [i], 611 
Rous, Cookfon, LeJ/ee of, v. Rous,, o. 

Routledge, Doe, Leße ofWatfon, v, o. 

716,11. [i],&t 152 
Rowlls v. Gell, o. 304, & n. [i], & t 
Royal Exchange Affwrance Company, 
C^Ltterv, the, 174365, in. {d) 

■ — ''• — , Felly ^, the, 368, n. 



Itoyce» fj&f King v. 210 
Rundle, Cüdlip v. 668 
Ru(h V. the ChanceUart iäc, of Oxford, 

Ruiky, Concibic «.716 
RufTdl, Strode V. 36 
• -»Right, Leffee of Shaw, v. o. 

761, 764 

»Wright V. 214 

Ruft «• Cooper, o. 87, & t 38» 88, 

Ratter v.RedHone, 35*» ". [3] 

Saint AgKtti the King ny. the Inhalit* 
ants of, 335 

— GiUi's CriffUgate v. Hackney, 

— Gileses in the Fields, the King v. 
the Inhahitantsof, 10, n. 

Salmon v. Percival, 674 
Sanders v. Hu/Tey, 329 
, Cranvell v. 34 

■ , Nappcr V. 78 
Sandfbrd v. Rogers, 431 
Sands ami Taft> v. Ledger, 666 
Szndwich, the Caje of Lord, 437 
Sarratt, the King v. the Inhabitants of, 

Saunderfon v. Baker, 42 

Savaee (Maurice* s) Cafe, 355, & n. 

[1], 356» fn. [4] 
■■ V. Knight, 62 

■ qta tarn v. Smith, 42, n. [fn)\ 

-— ,Day V. 120 
SaviUe v. Blacket^ 295 
Saxmundham, the King v. the Inhabit' 

ams of, 10, n. 
Say y Seal (Lord) v. Stephens, 352 
Sayer, Cooke «. 673, n. [2] 

, White y. 204 
Scattergood V. Edge, 4^3 
ScolaiUca's C/7/?, 2a2,n.[i4], 493 
Scoly, Pollard v. 235, 236 
Scott V. Knapton, 352 
— and others v» Kac, o. 787, & n. 

CO' 790 

— , Naylor, qui tarn, v. 205, & n. 

Scodamore, Morgan v. 726, & n. 

Scawell, Bond v. 37 
Sedgwick v. Richard(bn, 1 15 
Sdwin V. Selwin, 717 

Senior, the Attorney General v, 41 $> 

416, & n. 
Sergeaunt, Maberly v. o. 700, 761 
Serie v. Z,^«/ Barrington, 37 
Sewcl, the King t?. 743 
Shaller, PilkingtOB v. 186, 4604 $c m 

[l], 462,n. 
Shanks, Ex parte, 103 
Sharp, Buxendin v. 684, & n. (a) 

, Harrifon v. 205 

Shaw V. Gimbert, 68 & f 33, 69 
, Right, Leßeofv. RiÄcl,o. 761, 

Shee, Clark v, o. 698, n. (i}^ U 

t H7 
Shelley's Cafe, 489, 497, 501, 506, 

Shepherd v. Shepherd, o. 37, & n« 

Shermandburj «y. Bolncy, 10, n. 
Shires V. Glal'cock, 242, 243, 244 
Shore, Maddifon (Maddiflen or ideddi*^ 

fin) V. 558,n. [2], 559,&m(f) 
Short V. Co^n, 115, n, [1] 
Shute V. Homfey, o. 66^ 
Shuttlcworth v. Garnet, 728, n. [f\$ 

729, &n. [3] 
Silk V, Bennet, 382 
Simmonds, Clayton v. 291 
Simpfon, Hutton v, 339, 340, n, (r) 
Sinclair v, Frafer, o« 4, 5, n. 6 
Singleton, Hunt v, 567 
Skcggs, Den, Lefee of Earl Stanh^e, 

V. o. 184, n. [20] 
Skinner, Law «v. 92 -f , 93 +, 297, n« 

^, Pope v. 185, 669, ti38 

Skutt, Lloyd v. o. A7. Pr. ä/>^ M. 

20 Geo, 3. 63, n. [a'] 
Skynner, Pope a;. 1 85 
Slade's Cafe, 6,21 
Slater's C^, 633 
Smelting Company, {the) v. Richardfon, 

304, n. [i] 
Smith nj, Bromley, 0. 696, n. to 698» 


1;. Page, 253, n. {a) 

, Johnibn *v. 62, f 30, 112, m 

t^3] .. 
— , Phihps v. II J 
— , Savage, qui tarn, v. 42, n. («)» 

666,668, &n.[i] 

, Sparkes v. i86, 460, 462, n. 

, (Or Neie) Turner and Gary v. 

599,601,604, h n. (11) 




Soell» Pawfon a/, o. ii, n* [3]» 261« 

Snow, Stcvenfon v, 368, n. 587, 588, 

785, 786, 787, 796 
Snowden *v. Thomas, 316, n. [2] 

, Doe i;. 207, n. [7] 

änowe *v. Cutler, 491, 497, 501' 
Somner, Uppom «v. 415 
Sorrel -v. Lewio, 682 
South Crr/r^v a;. Coult/bourn, 440 

- Sea Company {jhe) v. Duncomb, 

■ *v. WymondfeJl, 

Southcot <v, Stawell, 501 

Sower by, the King a;, tbt Iribahitants eft 

Sparkes a;. Smith, 186, 460, 462, n. 

- *v, Spicer, 253, n, {a) 
Sparks, Tully *v, 116, n. 163, 164, & 

n. [8], 165,11. [10], 3S2*n. [3] 
Sparrowy. Carruthcrs, 276 
Spatj^mun, Mcllor 'z;. 131 
Spekc's Caßt 35 

Spencer, Bagfnaw *v. 340, n. [2], 341 
Spicer, Sparkes v, 253, n. (/i) 
Spotland, the King ^v, the Inhabitants 

oJ\ 419 
Spragge 1;. Stone, o. 35, 37, 38, 39. 
Stafford <ü, Moore, 61 
Stallinburgh nj. iiaxhay, 663, 664 
Stamford (Lord) 1;. Hobart, 475 

n). Nedham, 474, 475 

Stanhope, Den, LeJJ'ee cf Earl, *v, 

Skcggs, o. 184, n. [20] 
Stanley 1/. Leigh, 494, n. («), 505, ir. 

■ ■ , Le Mayne *u. 242, n. (^) 
Staples, Thelluffbn «v. o. 366, n. [9] 
Startups. Dodderidge, 204, 20c 
Sutham «y. Bell, o. 66, & n. [4] 
Stawell, Southcot 1;. 501 

Sted man's Cafit 794 
Stephens <v. Stephens, 496, n. (^), 
502, 506, n. 5C8 

■ ' , Lord Say and Seal *i/. 3 5 2 
Stevens, Hitchin,«i/. 681 

■ , The King v. 1 79 
Stevenfon *v, Nevinfon, 83 

' 1;. Snow, 368, n. 587, 588, 

785, 786, 787, 790 
St<;ward, Hcages ^. 635 
Stibbs V. Clough, 214 
Stone 'z;^* Forfyth, 0. ST. 22 G^o. 3. 

709, n? [2] 
— # Spragge V. o. 35, 37, 38, 39 

Strathan, Goodright, Leße qf CarUfp 

a;, o. 53, n. [17], S4t27 
Strode a;. Ruffell, 36 
Sucklinge v> Coney, 693 
Suddlecomb v> fiurwafh, 663, 664» n* 


Sudgravc, Clay v». 102, &n. [i] 
Swaine v» Demattos, 165, & n. [9], 

Swan and JefferySf the King v. 240, Ita 

Swayne v* F ^wkcncr and aaoiher, Sxi^ 

cuton ofMiddleton^ 762 
Swinnerton,- Butler v. 45, n. [1] 
Syderton, the King v> the InhahittMti tf^ 

o. 441, n. [1] 
Symonds 7;. Cockeril, 739 
SymTon a;. Kirton, 34 

Target 7/. Gaunt, 499 
Taffell and Lee v* Lewis, 6$^ 
TafTel, Body v. 236 
Taunton St. James^Sy the King v» the 
Church<wardens of, o. 83, & f 57 

St. Mary Magdalen , tht 

King T/. the Inhabitants of 418, 419' 

Taverner v* Cromwell, 729 
Taviilock, the King v. tht InhabiiOHts 

^A 7» 
Tawney's Ca/?, 117, 118 « 

Taylor v> the Mayor of Imxi Regis ^ 

126, 127 
,Auflin'y. o. 343 

, Bennington, v» 203 

, Clarke V. 199 

Temple, Alderfon v, 259, 256 
Thacker, Parker«;. 267, n. [1] 
Theed, the King v. 487, n. [l], 550* 

n. [a), 552 
Thellufibn v. Ferguflbn, E. 17 G. 3. 

364, 366, 367, n. 369, n. 370, 

n. &• 

— v. Staples, o. 366, n. [9] 

Thelwcll, Waddington v» 263 

Thomas's Cä/^, 794 

— — , Snowden v» 3.16, n. [2] 

, Williams v- o. 751, n. [2 J 

Thompfon, Brown v> 35, 37, 39 

, Burtons. 255 

, Vanderwoodll v* o. 609, 

Thomfon v. Roubell, 467, n. 
Thorn, Brian «y. 59,60 
Thornboroug, Wiilingham v. ^70, 47 1 




Jicknerf^Tickner, 35 

Ticrncjr v- Ethcrir.zton, 368, b. (/) 
'nibatgh v. Barbeck, 267, n, [ 1 ] 
Tindal,/i^rKiogf;. 550,0. {a), 552 
TXtu« v. Perkins, 732,11. 
Tomkmsf;, Bernet, 696, n. 697, lU 
Took«;. GlaTcock, 329 
Townihend's Cafi, 355 
Townihend, tlje Queen t;. 550, n. («) 
Tracy 7A Lcthiculher, 78 
Trapaud v. Mercer, 95 
Tregonweil, Martin v. 776, n. 
Trcnfliain, Pepperharrow v. 440 
Trevors. Trevor, 501 
TiiBilec, tJk< Major tf Extier v. 729, 

Triftram v. Loify BaldngUfs, 569, 57 1 
Truant, Haman v. 429 
Truebcidy, /^e Queen v. 157 
T'nunper v. Carwardine, o. 202, 206 
Tiuly V. Sparks, 1 16, n. 163, 164. Sc n. 

f8j, 165, n. [10], 352. n. [3] 
Turner v. Goodwin, 688, 689, &n. [2] 
J i^ Cuay V. Ncle for Smith J, 

599,601,604, &n. (a) 
Turvd V» Aynfworth, 194, o. 
Twitty,/^/ Queen V. 82 
Twyne's Ca/e^ 88, 296 
Tyrie *v. Fletcher, o. 587, 588, 784, 

& t «68, 785,790 
Tytc 'V. Willis, 267, n, [x] 

Ubiy, Daniel v, 45 

Under Barrow ^ the KUg a», the Inhabit' 
ants of i H. 6. Geo. 3. 310, & n. {l] 
Uppom v. Somner, 415 
Uredall «v. Uvedall, 493. 


Vanderheyden, Goddard n;. 165, n. 

Vanderwoodft «r. Thompibn, o. 609, 

Vandewall, tht King v, 304, n. [i] 
Van Mierop, Pillans o^. 299 
Van Uxem, Plaillow 1/. o. 5, n« 
Vaughan v. Lewis, 157 
■ , Grant «v. 634 

Vautrin, Boulogne «v. o. 467, n. & f 104 
Vaws, the King 1;. 536 
Vernon, Acherley 'v. 38, 716, 717, n. 
Vigilant (Le) the Cafe of,- 0. 600 
Vincent, Attwood v. 6e 


Waddmgton 'v. Thelwell, 265 
Wakcman, Walker 1/. 570>57i,574 
Waldron, Norris v. 678, n. [3] 
Walker 'Vk Chapman, o. 471 

'v. Reeves, o. 461, n, [i], to 

463, n. 

V. Wakcman, 570, 571» 574 

, Afli *v.Oy 9 ; 

»Agert I2z 

WaU, EÜisv. 3i6,n. [i] 
\V aller, the King and, «v. Hj 
Wallis, Hitch v. 729 
Walmfley v.Child,635 

, Barjeaa nj. 743 

Walpolc ^. Pultency, o. 248, 249, h 

n. [2], 250 
Walfall, the King »v. the lahahitamts 5^ 

o. 564,5: n. [i] 
Waltham Ma^na v, Waltham Parveu 

Wangford v, Brandon, 9, n. [2], 10» 

Warblington, the King <zf. the Inhalit^ 

ants of, 622 
Ward's Cafe, 360, «c n, [7] 

, Avclyji <v. 66, 493, 505, m« 

Warde, Brooke 1/. 34 

Warner 1/. White, Lcfig rf Whiu^ a. 

344» «• f4l 
Warnes, Ellis v. 742, 744 
Warrington, Boo:h v. Lwi/, 656 
Warwick, qui tam» 'v. White, 550, «• 

, Edwards *ff, the Cottmteß ^ 

776, n. 
Walhll, Elkln 1;. 728 
Watkinfon a/. Barnardifton, 103 
Watfon, Doey Lejfee of, a». Routle^gc« 

o. 716, n. [i], & t 152 
Pawfon *v. o. 11, n, [3], 261» 

Watts a». Fullarton, 0. 718, 719 
Webb, /i^^King t. /'yf»///)) Carteret^ 239 

a/. Hearing, 266, 268>n; [1] 

Weedon, Parflowci/. 714 

Wellington a;. Wellington, 35 

Wells, the King «v. /y?»^ Corporation of 

, Power <v. 0. 24, & n. [8], U 

Wel^ Goodwin V. 55S, n. [1]» 559, 

560, n. [4] 
Wcftby'sCÄ>, 352, n. [3] 
Wcftcombc, Jones «. d^^ 79 



INfDEi of CASES elf ED, bfc. 

Wcfterlcigb, the King v. the Inbahit- 

ants of, 392, 393 
Weftgarth, Peat v, 349, 350 
Weilminfter> the Cafe of the Dean ami 

Chapter of, 568 

.440 . 

Weft well, the lung v. the Inhabitants of. 

Welhvood, the King v. the Inhabitants 

of, 662, 663 
Wcftvvoodhay, Combe *o, 44.0 
. Whadey, White, Lejee of, Hawkins v. 

^3>^'[7] & t' 281, n. (//) 
White, Z.^* £/^ fVhatiey, v. Hawkins, 

23, n. [7] & t*28i,n. {d) 

■ V. S^yer, 204 
«^— , Afhby V. 351 

— , Leße of Bertie, Perry v.o. 53, 

n. [16] 
^— » Z^tf of White, Warner v. o. 

344, n. [4] 
, Warwick, qui tarn, 'v, 55x3, n. 

Whitehead, Doe, Leße of Odiarne, v. 


■ , /i&f King V. 188 

Whitley v. Loftus, 5i9,n. [2] 
Whittall, Crawford v. 0, 3, 4, & n. 5, 

Whitton V. Prefton, 351, 352 
Wickett, Gulliver ^,05, 499, n, [2] 
Wickhaxn, the Corporation of, v. the 

Mayor, 30J, & n. (0 
Widlake v. Hardinge, 322 
Wid worthy, the King i». /^f Inhabit- 

mnts of, 611 
Wild's Cfl/^, 322, 323, 432, & n. (^), 

IK^es V. Broadbent, 205 
Wilkins, Auger v, 378, n. 
Williams V. Thomas, o. 751, n. [2] 

■ , thel^g V, 583, n. {a) 

> Lloyd V. 235, 237, 740 
Wniingham v. Thornborougn, 470, 

Willis, Tyte v. 267, n. [i] 

Willowe's Cafe, fzS, n. 

Wilmcr, Foitcr v. 17, 365, & n. (^) j 

Wilmot V. Horton, o. 700, 701, 702^ 

& n. [3], 705,706,707, n. {a) 
Wilfon V. Day, 91 f, 296 

V, Robinron,434 

Winchefter, Ex parte, 5 24 

Winlhip, (Grun^jjell and,) the King v» 

333» n-[«] , 
Winter v. Loveday, 570, 574, & n» 

Withers, Gofs v. 232, 233,617, n. 
Withipole, the Cafe of Sir William, 248, 

n. W,n. (/) 
Witney, /^ir King t;. //&f Inhabitants of\ 

Wood's ^ör Pridgeon*s) Cafe, 635 
Wood, Birch D. 143, 144 
Wood, Hodgkinfon v, 501, & n. (a) 
Woodford v. Eades, 5 10, n. [2] 
Woodfterton, the King v, //>^ Inhabit-^ 

ants of, 333, n. [2] 
Woolmer V. Muilman, 733, &n. [i] 
Workman v. Leake, 0.671, & f 139 
Worfley v, Demattos, 87, 88, 91 f, 


, Chamock v. 45 

Wright V. Lord Cadogan, o. 53i B« 

■ -i;. Ruflell, 214 

V. Wyvill, 492 

,Goodrightv. 339, ic n. fl] 

Wymondfell, the South Sea Compatn ^^ 
656 r ^ . 

Wynne, Goodright, Leße of, v. Ham« 
phrys, o. 52,& n. [14] 

V. Middleton, 594, n. 

Wyvill, Wright t;. 492 

Yardley, Richardfon v, 432, & n. (i/) 
Young, AfUey v. 678 
V 747>n-(0 

Zinck V. Langton, o. B. R. T. 22 Geo. 3 • 

75 J »n. [2J, 10753, n. 
Zoucb V. Bamfield, 45 



N D E X 

O P 


In the Additional Notes to the Second Edition« 

A B BOT, the King v. o. 553 

At "3 

Abrahams v. Bunn, 247 f 70 

Alexander v. the Jußku o/Bcrk" 

(hire, o. 554 f 
Allan, Long v. o. 790 f 169 
Allanfon, Gockerell v. o. 781 t '^7 
Allin, Goodright v. 764 f 164 
Anthon, Fiflier v. 650 f 132 
Applcton V. Swectappie, 515 t 

Aylctt V. Lowe, 6 f 4 


Backwell v. Hunt, 42 t 17 
Bailie v. Wilfon, 141 t> Addend. 
Baiilie v, Modigliani, o. 235 f 68 
Barber, Bcft v. o. 101 f 42, 192 

t 60 
Barzillay v. Lewes, o. 583 f i ^ 7 
Beckley v. Newland, 140 f. Ad- 



Beckwith, Ibbetfon v. 764 f 164 
Bedford, Compton 1;. 91 -j* 
Beerling, Reynolds v. o. 112 f 47 
Berkfhire, Alexander v, tie Jußices 

ify o- 554 t 
Beft v. Barber, o. loi +42, 

t 60 
Befton, Browning tu j8f 
Beckley v. Newland, 40 f» 


Bifliop, Walfli V. 169 f ^6 
Blackerby, Broadwaite v. 313 + 

Blackett, Roe v. 764 f 164 
Blight, Loveacres v. 764 f 164 
Bolland v. Pritchard, 466 f 103 
Bonner, Poller v. 62 f 30 
Boone v. Eyre, 691 f 145 
Bordell, Campbell v. 74 f 36 
Brangwin v. Perrot, 50 f 20 
Braithwaite, Southcotc v. o. 218 f 

64, Addend. 
Broadwaite v Blackerby, 313 |8^ 
Brograve, the King v. 563 f nc 
Brown, Findal v. 5i5fiio 
Browning v. Befton, 58 f 

V. Morris, 698 f 146 

C Buchan, 


Buchan, Cochran v. the Earl of, 6 

BuckncU, Weakley, Lejee of Yea, 

Bunn, Abrahams v. 247 f 7^ 
Biifh V. Leake, o. 431 f 100 
Burgefs v. Wheate, 526 t iii 
Butler, Jacky v. Ö51 f 133 
Buttcrficld V. Heath, o. 72it'S4 

Cadell, Mace v. 167 f, 320 f 87 
Campbell v. Bordell, 74 f 36 
Carlifle, Trears v. 669 f 138 
Came, Slater v. o. 431 f 100 
Carvick v. Vickery, o. 653 f 134 
Catchpole, Ledwick v. o. 360 f 93 
Chilton V. Whiffin, 166 f 55 
Church, Jenkins, Lejle of Yate, v. 

S4 t 2Ö 
Cochran v. the Earl of Buch an, 6 

Cockerel! v. AUanfon, o. 781 f 


Coe, Rich V. 105 f 44 

Coke, Fountain r. 141 f 51, Ad- 

. dtnd. 

College o/Phy/tcians (the)^ //>f King 

^- 3SSt92- 
Compton V. Bedford, 91 f 

Cooper, Renalis v. o. 108 f 45 

Cowpcr, Stiles v. 54 f 26 • 

Cox V. Liotard, 166 + 55 

Craddock v. the Duie of Devon- 

(hire, 727 + 155 

Crookc v. Davis, 2 1 8 f 64 

Crofs, Holloway V. 313 tW 

Crofsly V. Shaw, 314 + 85 

Tavis, Crooke v. 218+64 
Kelmada v. Motteux, o. 255 +, 

rciin, LejffeeofG^txivt^i r. Shcnton, 

268 + 76 


Devonfliire, the Duke of^ v. Crad- 
dock, 727+ 155 

Doe, Lejfee of Hanfon, v. Fyldes, 
268 + 76 

Dundafs v. Xörrf Weymouth, 667 

Dunfter v. Pierce, 684 +144 
Durrant v, Lawrence, o. 228 f 66 
— V. Surecold^ 0. 228 + 66 


Ealing, the King v. the InhaUtants 

of 46 + 16 
EafUIndia Company, (the) Edie v. 

Edie V, the Ea^l-India Company^ 

640+ 130 
Edwards, Floycr v. 744+ 161 
, Palmer v. o. 187 + 59 

Ellis V. Galindo, o. 250 + 71 
Endon, the King v. the Inhabitants 

of o. 227 + 
Eflex, the King v. the Jujlices of o. 

554 t 
Eftcourt V. WarrV, 505 + 108 
EveJey, Slowly V. 169 + 56 
Evelyn (jf tiafh^ Hall v. 554 f 
Ewer, Rofs v. 709 + 150 
Eyre, Boone v. 691 + 145 


Fabrigas, Moftyn v. 112 + 48 
Finch V. Throgmorton, 58+29 
Findal v. Brown, 515 + no 
Fiftier v. Anthon, o. 650 + 132 

t;. Lane, 380 + 95 

Fletcher, Price v. 667 + 137 
Floyer v. Edwards, 744 +161 
Forbes, Ifquierdo v. o. 6 + 3 
Fwd V. Parr, 108 + 46 
Fofter V. Bonner, 62+30 
Fountain v. Coke, 141 + 51, Ad- 
Frogmorton v. Wright, 764 + 



Feldes, Doe, Leffu j^Hanfon, v. 
268 t 7<S 


Gak fi. Machell, o. 588 f 120, 790 

Galindo, Ellis v. o. 250 f 71 

Geering, Denn, Lejfee ofy v. Shen- 

ton, 268 f 76 
Gk)lightl]r, Jaques tf. 698 f 146 
Goodright v. Allin, 764 f 164 
— y Lejfee of Rolfe, Har- 

wood V. 40 f 16,731 f 157 
Goodütle v. Knot, 721 f 154 
Gofs V. Traccy, 141 f 51 
Goyton, Weiler v. 169 f 56 
Grcgfon, Meyer v. o. 588 f 120, 

790 t itfp 
Greenhill v. Greenhill, 718 f 153 
Griffiths, Morgan v. 2Ö7 f 75 
Groneman) Reeks v. 467 f 106 


Hall V. Evelyn ö* tJafi^ o. 554 + 

•— Medcalfev. o. 515 f no 
Hall, Pinkncy v. 653 + 134 
Hanfon, Doe, Lejfee of^ v. Fyldcs, 

268 + 76 
Hartley, Poreau v. o. 650 + 132 
Harwood v. Goodright, Lejfee of 

Rolfe, 40 t 16, 731 t 157 
HafTells v. Simpfon o. 89 f 39 to 

93 t 297 t 78 
Heath, Butterfield v. o. 721 + 154 
Hemroings v. Smith, o. 175+57 
Henkle v, the Royal Exchange Af- 

furance Company, 254 + 72 
Herrick, Inge v. o. 675 + 141 
He&uyfon v. Woodbridge, o. 166 


Hewit V. Mantcll, 316 + 86 

Hide V, Mafon, 40+16 

Hilcs v. Meredith, o. 263 + 73, 

HiU, Piatt V. 97 + 41 

Hogan V. Jackfon, 764 +164 
Holford, Lade V. 721 + 154 
HoUoway, Crofe v. 313,(0) 
Holmes, Stean v. 246 + 69 
Hopkinfon, Street v. 731 + 157 
Home, the King v. 158 + 53 
Hunt, Black well v. 42 + 17 

, Whitfield V. o. 725 + 155 

Hufley v. Jordan, o. 382 +97 


Jackfon v. Trinder, 467 + 105 

1 Hogan V. 764 + 164 

Jacky V. Butler, 651 + 133 
Jaqucs V. Golightly, 698 + 146 
Ibbetfon V. Beckwith, 764+ 164 
Jenkin v. Whitehoufe, 709+ 150 
Jenkins, Lejfee of Yate, v. Churchji 

Inge V. Herrick, o. 675 + 141 
Ingham, Noke V. 169+56 
Ineram, the Queen v. 730 + 156 
Johnfon v. Spiller, o. 167 + 585 + 


-, Salucci v.o. 583 + 117 

Jones V. Randall, 594 +122 

V. Rees, o. 263 +73 

V. Thomas, o. 263 + 73 

, Stainton v. o. 380+96 

Jordan, HuiTey v, o. 382 +97 
Ifquierdo v. Forbes, o. 6 + 3 
Iveiton, the King v. o, t^'^ + '3 J 


King (the) v. Abbot, o. 553 + 1 13 

V. Brograve, 563+ 115 

V. the College ojf Ph)'iician$, 

355 t 92 
V. the Inhabitants of Ealing, 

46+ 16 
V. th Inhabitants of Endon» 

o. 227 + 
V. the Juflices of Efiex, o. 

554 t„ 
V. Home^ 158 + 53 

c 2 ^^ 


King (tht) V. Ivefton, o. 658 f 13 
V. Lakenhani, o. 563 f 115 

— V* Miller iff Reeve ^ o, 5S4 1> 

555 t 

■ ■ V. the Itibahitants g^Mitcham, 

O. 226 f 65, 564 t 116 

• i V. the Inhabitants of North 

Curry, o. 631 f 129 

V. the Inhabitants of Saint 

James's, Btdry St, Edmunds, o. 

227 t 

. V. the Inhabitants of Saint 

Lawrence, o. 227 f 

— .^ — V. the Jußices of Southamp- 
ton, o. 554 t 

^— V. the Jtiflices of Suffolk, o. 

554 t 
— . V. Theed, T. Sc M, s Geo. 2. 
554 t> 555 ti & t 114 

■ V. Lord Waltham, o. Ö67 f 


— — V. Wilde, 97 f 41 

Knot, Goodtitle v. 721 t 154 

Lade V. Holford, 721 t 1 54 
Lakenhani, theYSmgv. o. 563 f I15 
Lane v. Wheat, o. 313 f 84 
— , Fiflier v. 380 f 95 
Langford, Price v* 780 f 166 
Lawrence, Parker v. 169 f 56 
Lcadbeter v. Markland, 314 f 
Leader v. Moxon, 62 f 31 
Leake, Bufli v, o. 431 f 100 
Ledwick v. Catcbpole, o. 360 f 93 
Lewes, Barzillay v. o. 583 f 117 
Liotard, Cox v. 166 f 55 * 
London AJfurance Company (the) v. 

Sainfbury, o# 707 f 149 
Long V. Allan, o. 790 f 169 
Loveacres %k Blight, 764 \ 16^ 
Lowe, Aylett v. 6 f 4 

Mace V. CadcU, 167 t> 3^0 f 87 

MachcU, Gale v. o. 558 '•\- 120 

790 t 169 
Mantell, Hewctt v. 316 f 86 
Markland, Leadbeter v. 314 t 
Marlow, Wadham v. o. 188 f 
Martin v. Podger, 42 f 18 
— ^— V. Winder, 199 f 63 

, Pugh V. 62 t 30 

Mafon V. Sainfbury, o. 707 f 149 

, Hide V. 40 t 1Ö 

Mayne v. Walter, o. 583 + 117 
Medcalfe v. Hall, o. 5x5 f no 
Meredith, Hiles v. o. 263 f 73, 

Meyer v. Gregfon, o, 588 f 120, 

790 t 169 
Miller & Reeve, /A^King v, o. 554 

t> 555 t 
Mills, Taylor v. 168 f 
Mitcham, the King v, the Inhabit 

ta/its ojfy o. 226 f 65, 564 f 1 16 
Modigliani, Baillie r. o. 235 f 68 
Moody's Cafe, 114 f 45> 
Moore v. Mufgrave, 669 +138 
Morgan v. Griffiths, 267 f 75 
Morris, Browning v. 698 + 146 
Mollyn V. Fabrigas, 112 + 48 
Motteux, Delmada v. 254 f. Ad* 

Moxon, Leader v. 62 f 3 1 
Müller, Philpot V. 169156 
MuUiner v, Wilkes, o. ^6 f 40, 

431 t 100 
Mufgrave, Moore v. 669 f 138 


Newland, Beckley v. 40 f. Ad-» 

Newton, Woode v. 62 f 30 
Noke V, Ingham, 169 f 56 
North Curry, the King v. the Inha» 

bitants of o. 631 f 129 
Nutt, Shulbred v. o. 438 f loi 



Saint James's, Bury St. EJmufids^ 
P. tht King V. the Inhabitants of^ o, 

227 t 
Lawrence, the King v. the 

Inhabitants of^ o. 227 f . 
Salomons v. Stavely, o^ 684 f 144 
Salucci, Johnfon v. o. 583 f 117 
— , Woodmafs v. o. 583 f 

Palmer v. Edwards, o. 187 + 59 
Parker, Lawrence v, 169 f 5Ö 
Parr, Ford v. 108 f 46 
Pennant's Cafej 58 f 29 
Perrot, Brangwin v. 50 + 20 
Pcterkin v. Samfon, o. 330+, Ad- 
Philpot, Mullcr V. 169 f 56 
Pierce, Dunftar v. 684 t I44 
Pinkney v. Hall, 653 f 134 
Plantamour v. Staples, o. 790 f 169 
Piatt V. Hill, 97 t 4< 
Podger, Martin v. 42 f 18 
Poreau v. Hartley, o. 650 f 132 
Price V. Fletcher, 667 f 137 

r- V. Laiigford, 780 f 166 

Pritchard, Bolland v, 466 f 173 
Pugh, Martin v. 62 f 30 

Queen (the) v. Ingram, 730 f 15Ö 


Randall, Jones v. 594 f 122 
Reeks v. Groneman, 467 f 106 
Rees, Jones v. o. 263 f 73 
Rennalls v. Cooper, o. 108 f 45 
Reynolds v. Bcerling, o. 112 f 47 
Rich V. Coe, 105 f 44 
Roe V. Blackett, 764 -f 164 
Rolfe, llarwood v. Goodright,L(^^ 

of, 40, t 16, 731 t IS7 
Rofs V. Ewer, 709 f 150 
Royal Exchange Afufance Company 

(the) V. Henkle, 254 17^ 


Sainfbury, the London AJfitrance 

Company v. o. 707 f 1 49 
— — , Mafon V, o, 707 f 149 

Sampfon, Peterkin v. o. 330 f. 

Shaw, Crofsley v. 314 f 85 
Shenton, Denn, Lejpe of Geering, 

V. 268 t 76 
Shirley v. Wilkinfon, o. 306 f 81 
Shulbred v. Nutt, o. 438 f loi 
Simpfon, Haflel^ v. o. 89 f 39 t9 

93 t 297 t 78 
Slater v. Carne, o. 431 | |oo 
Slowley V. Eveley, 169 f 56 
Smith, Hemmings v. o. 175 f 57 
Southampton, the King v. the Juf-» 

ticesof, 554 t 
Southcote V. Braithwaite, o. 218 f 

64, Addend. 
Spiller, Johnfon v, o. 167 f, 585 

t 118 
Staples, Plantamour v, p. 790 f 

Stavely, Salomons v. o, 684 f 144 
Stainton v. Jones, o. 380 f q6 
Stean v. HolmeS| 246 f 6g 
Street v, Hopkinfon| 731 f 157 
Stewart, Worral v. o, 7^ f 35 
Stiles, Cowper v, 54 f 2(J 

, Walford v. 764 f 164 

SufFoik, the King v. the Jußices of, 

o. 554 t 
Surccold, Durrant v. o. 228 f 66 
Sutton V. Sutton, 40 f 16 
Sweetapple, Applcton v*'o, 515 \ 



Tamm v, Williams, o. 380 f 9r 
Taylor, Mills v. 168 f 
Theed, the King v. T. 8c M. 5 
Geo. 2. 554 t> 555 t> & 1 114 
c 3 Thomas, 


Thomas, Jones v, o. 263 f 73 
Throgmorton, Finch v. 58 f 29 
Tracey^ Gofs v. 141 + 51 
Ti^ars, Cairliflc v. 669 f i j8 
Trindcr, Jackfon v. 467 f X05 


Vickcry, Carwick v. o. 653 f 134 


Wadham, Marlow v. o. 188 f 
Watford, Stiles v. 764 f 164 
Waiter, Maync v. o. 583 + 117 
Waltham, /Ap King v. Lw^d, o. 667 

+ 137 
Warry, Eftcourt v. 505 f 108 

W-alfli V. Bifliop, 169+56 
Weakly, Lefee /Yea, v. Buckncil, 

22 + 8 
WcUcr V, Goyton, 169 + 56 
Weymouth, Dundas v, Lord^ 66*] 

Wheat, Lane v, o, 313 + 84 

Wheatc, Burgefs v. 526+111 
Whiffin, Chilton v. 166 + 55 
Whitehoufe, Jenkin v. 709+150 
Whitefield v. Hunt, o. 727 155 
Wilde, the King v. 97 + 41 
Wilkes, Mulliner v. o. 96 + 40, 

Wilkins v. Williams, o 263 + 73 
Wilkinfon, Shirley v. o. 306 + 8i 
Williams, Wilkins v. o. 263 + 73 
, Tamm v. o. 380 + 95 , 

Wilfon, Bailie v. 141 +, Addend. 
Winder, Martin v. 199 + 63 
Wood V. Newton, 62 + 30 
Woodbridge, Helkyfon v* o. i66 

+ 55 „ . 
Woodmafs, Salucci v. o. 583+117 

Worral v, Stewart, o, 72 + 35 

Wright, Frogmorton v. 764 + 164 


Yatc, Jenkins, Lejie oß Church v» 

Yea, Weakly, Lefee /BuckneU, tt, 

22 + 8, 




In the Additional Notes to this Third Edition. 

NDRE V. Fletcher, 471, 


Badkin v. Powell, 42, n. [12] [(0*] 
Bailie v. Wilfon, 141, n. [oc?" 2] 
Barbe v. Parker, 669, n. [f i38o::>] 
Barker v, Edmunds, n. [f 1 3 8 (ö*] 
Beaufoy (Ex parte J ^ i68, n. [ö*] 
Beckley v. Newland, 39, n. [c^ ] 
Bennefs f Mafier J Cafe^ 665, n. 

Co- I] 

Benfon v. Parry, 236, n, [cö*] 
Bent tx Baker, 141, n. [0^ i] 

Bevan v. Delahay, 207, n. [8 (Ö*] 
Bickerdicke v^ Bellman, 514, n. 

Bonafous v. Walker, 5, n. [c5"] 
Boothman v» -Ear/ cf Surry, 42, 
n. [(r> i] 
Borman v. Bellamy, 384, n. [cJ-] 
Boucher v. Lawfon, 6, n. [cc> 2] 
Brodccs V. Lloyd, 164, n. [ö^] 

Brymer (Ex parte )y 168, n. [(Ö*] 
Buck V. Wright, 283, n. [t770(Ö'3 
Bullock V, Barrow, 797, n. [CJ'j 
Burroughs v. Jamineau, 6, n. 

Burton f -Ex parte )y loi, n. 

Bute, Lordy v. Grindall, 305, n. 

Cazalet v* St. Barbe, 
Churchill v. Wilkins, 

23* n. 

IS* n- (/) 

Clanrickarde, Lord f Exporte J^ 168, 

n. [(Ö*] 
Cockihott V. Bennet, loi, n. 

Collins r. Forbes, 320, n. [87 (ö^ 
CoUis V. Emet, 51Ö, n. [(ö*3 

Coope V. Eyre, 373, n. l^-] 

Cotterell v. Jolly, 781, n. [ti67ö-] 
CromwcWi fLord J Ca/e, 97,n,[(Ö'] 




Dalmada v. Motteux, 255, n. [(Ö*] 
Darbv v. Cofcus, 378» "• (^) ^ 
Darling v. Hill, 665, n. [0:^2] 
Davics V. Pierce, 732, n. 


Davis V. Mazzinglii, 468, n. [CJ* ] 

Doe, Lrßif of Briftowc, v. Pegge, 

721, n CtiS4«^] 

Doc, LeJ/ee of Hodlclcn, v. Staple, 

721, n. [t 154»^] 

Doc, Lfjee of Ycücy, v. Wilkinfon, 

79, n. [0-] 


Edmonfon v. Mackcll, 252, n. 

Ekins V. Mackhole, 5 1 2, n. [(O] 
Ellis V. Smith, 244, n. [0^] 

EntwiiUe v. Shepherd, 753, n. 


Ferrers fLord) v. Shirley, 93, n. 

Fielder v. Starkin, 24, n. [&:>" i] 
Fitzherbert v. Mather, 261, n. [r5*] 
Fitzroy v. Gwillim, Ö98, n. [5^] 
Fletcher v. Smeton, 764, n. 

' [ti64^] 
Ford V. Grey, 485 j n. [1 ft::^] 

Ford V. Hopkins, 512, n. [(t:^] 
Fountain v. Coke, J4i> n. 

Fowlis V. Mackintofh, 330, n. [5^] 
Frith V. Lcroux, 753, n. {a) rl* 


Galbraith v. Neville, 5, n. l& 2] 
732, n. [t 157^0 
Gift V. Mafon, 650, n. [f 132 (^] 
Goff, gt/i ianty i'fc. v. Popplewell, 
II4> !'• [<^] 
Gould V. Jones, 93, n. t5 

Grayfon v. Atkinfon, 244, n. [0*1 
Green v. Bennet, 115, n. [0^] 
Green v. Hcanie, 3 16, n. [(C?* 2] 
Griffiths v. Williams 624, n. [ö^] 
Gulliver -y. Drinkwater, 585, n. 

Gwinnett v. Philips, 669, n, 


Hankey v. Smith, 438, n 

Ct loi ^^ 

Hays V. Bryant, 9, n. [Ö*] 

Hedges v. Sandon, 96, n. [f 40 »^], 

430, [f 100 Cr J 

Henderfon v. Withy, Ü* ni. Bail 

of O'Brycn, 61, n. [c?*] 

Hiles V. Mcreditli, 263, n. [f 73 s:^] 

Hoare v. Contencin, 373, n. [Ö*] 

Hobfon V. Campbell, 467. n. 

If 106^2 
Hockrill {or Hockley) v. Merry, 

1Ö7, n. [{^] 
Holby %\ Bray, 97, n. t$* 

Holdfaft V. Martin, 764, n. 

Holman v, Johnfon, 253, n. [ö^] 
Hotham v. Eafl India Company, 

694, n. [«^3 
Hubbard v. Pacheco, 468, n. [(Ö* *] 
Hunter v. Potts, ^70, n, [CS*j 


Jaques v. Witley, 472, n. (a) 

697, n,.[«:ri 

Jennings V. Webb, 53, n. [t.225;|»J 
J ones V. Morgan, 340, n^ [ 2 0* J 


King V. Gramlingay, 53, n. 

V. Pippct, J94, n. [0=-] 

66^, n. [t 138(0*1 

Kirk v. Nowill, 678, n. [2 c:^] 


Rex V. Aire Navigation» 

Ladbrokc v. Crickett, 378, n. (7) 

Laing V. Cundale, 467, 11. [tj*] 
Lee V. Libb, 242, n. [b^'] 244, n. 

LethculHcr v. Tracy, 433, n. [«^] 
Lewes V. Harris, 207, n. [8 (0*] 
Lonfdale (LJ.) v. Church, 49[{Ö*J 
Lowndes v. Home, 406, n. [i K^] 
Lumley v. Palmer, 299, n. [KT j 


Macrae v. Tall, 764, n. [+1648:$'] 
Martin V. Court, 168, n. [^2 

Mafon V. Vere, 167, n. [rSr*] 

Maundy v. Maundy, 760, n. [10*] 
Maydwell (Exporte), 168, n. [»^J 
Mcffcnger V. Armftrong, 176, n. 

Milward v. Thatcher, 398, n. [fiCT] 
Mitchell V. Edie, 234, n. [f 68 9^'] 
Mitchell V. Gibbons, 330, n. [5C|*] 
Morgan v. Hughes, 215, n. [SCS"] 

Ncrot V. Wallace, 697, n. [Ö*J 


Orr V. Churchill, 376, n. [Ö*] 



Rex v.Amery, 437, n. [ittJ^J, 535» 

n. [I «^J 

Rex V. B'ljhop of Chefter, 526, n. 

Rex V. Bryant, 
Rex V. Bowes, 
Rex V. Chcfliunt, 
Rex V. Crowther, 
Rex v. Eaton, 
Rex V. Haigh, 
Rex V. Heaven, 

Rex V. Inhabitants of Folkeftonc^ 

226, n. [165»^] 

Rex V. Jtiflices of Hcrefordfhire, 

193» -^^ l^'. 

486, n. [i 5^. 
467, n. [0*;^ 

563, n. [»t; 

346, n. [Ö*. 
751, n. [2Ö*: 

332, n. [9Cr. 
157, n. [^ I 

463, n. [rr; 

97» n. [i2«:g* 
401, n. l^' 
563, n. [rs*~ 
427, n. [(0*^ 

658, n. [i ^ 

Paul V. Jones, 


Peterkin v, Sampfon, 330, n 


Pomcry v. Partington, 574, n. [»^j 


Rann v. Hughes, 683, n. [«^] 
Raflik'igh-v. Salmon, 3 1 6, n. [v5 jT* i ] 
RudwcU V. Shadw«ll| 69Ö, n. [^] 

Rex V. Jones, 
Rex V, London, 

Rex V. Maddern, 
Rex V. Palmer, 
Rex V. Sandford, 

Rex V. Mayor of Slirewfbury, 157, 

n. [KT 2] 

Rex V. Webfter, 283, n. {a) [^] 

Roberts v. Herbert, 6Ö9, n. [f 138 


Roe, Leffee of Gregfon v. Harrifon, 

S7» n- [KT] 

Roe, Z/^^ of Hunter, v, Galliers, 

1 84, n. [jcr J 

Rogers, Z(^^^ c/"Dawfon, v. Briggs, 

764, n. [t 164 a^J 


Salucci V. Johnfon, 599, n. [Ö» i] 
Samuel v. Evans, 97, n. [123:3^3 
Say and Sele (l^if.) v. Stephens, 

Shardelow v. Naylor, 708, n. [rl*] 
Sheddon v. Carnes, 330, n. [_^] 
Sheldon v. Baker, 468, n. fö" *! 
Shrcwlbury(A/öVi>r o/*^ v. Kynefton, 

732, n. [t 157^] 
Skipp V. Harwood, 651, n.[i r>] 
Smith V. Hickfon, 66c^, n. [f 138 

o ^^ 

Southcote t;. Brathwaite, 217, n. 

Spiers v. Parker, 682, n. [C^r] 
Spring V. Biles, 717, n. [tS*] 

St. Albans fDule of J vi Shore, 
690, n. [c:>] 
Stewart v. Dunlop, 262, n. [2>] 
StonchouÄ V. Evelyn, 244, n. [r^ J 


Taylor v* Rains, 70S, n. [0^] 
Tottflaint V. Martinant, 168, n. 

Towers v. Barrett, 24, n. [0* 2] 
Trueman v. Fenton, loi, n* [f 42 

Trevor v. Wall, 732, n* [t 157 

Truflcl V. Afton, 97, n. [t^] 

Tufihell V. Page, 764, n. [f '^4 

Tyfon «. Gumey, 735, n. [f 158 

Utterfon v. Vernon, 584, n. [«>3 

Vaughan v. Lewis, 157, n. [cc> x3 


Wealthy, ij^^ of Manley, v. BoC- 

viUe, 265, n. [flC^J 

Winch V. Fenn, 236, n. [f^l 

Woodgatc V. Knatchbull, 42, n. 

Wyvill V. Sheppard, 669, n. [f 

138 o-j 


Yates V. Hall, 650, n. [r K>J 

Young V. Hockley, 167, n. [t^J 

JUDGES of the Court of KING's BENCH 
during the PerijJd of thefe Reports. 

William Earl of Mansfield, Lord Chief Juftice, 
Edward Willes, Efq. 
Sir William Henry Ashhurst, Knt* 
Francis Buller, Efq. 

Attorneys General; 

Alexander Wedd£Rburne> Efq. 

James Wallace, Efq. (appointed jlug. 1780.) 

Solicitors General. 

James Wallace^ Efq. 

James Mansfield, Efq. (appointed «9^/. 1780.) 



In tHE 

Court of KING'S BENCH, 

I N 

Michaelmas Term, 

In the Nineteenth Year of the Reign oFGeoRoe III. 

Walker and Others, Afligneesof Bean, a 
Bankrupt, and Mackenzie, and Others, 
Aflignees of Cut H BERT, a Bankrupt, agai?ift ^^i^l^oJ! 

THIS was an aöion of debt, brought in the county An aflion of 
of Middlefexj on a judgment in the fupremc «iebt will lie 
court in Jamaica.— The firft count of the de- P^ ^"^^^'S" . 
ciaratiort was in the following words : ** William Witter^ the plaintiff 
late of the parifh of St. Mary le Botie^ in the county of need not ihew 
Middlefexy Efq; "vrzs fummoned to anfwer Ifaac Walker ^ the ground of 
Francis Neuron, and John CqIvHI, affignecs of the eftatc ^^vj^'^'^*"** 
and effdÖs of Samuel Beany a bankrupt, within the true ^|yj, ««^«rJut 
intent and meaning of the ftatutes made and provided, pmrcrpei re*, 
and now in force, concerning bankrupts, znd Colin Mac- coidum," that 
imzie, Thomas Bell, and Alexander Grant, affignecs of ^^ ^^^"^j*;!^* 
Ihe eftatc and eiFcös of Lewis Cuthbert, a bankrupt, ^c. age**an? t"hc 
that he render to them 594/. ox. 4</. of lawful money defendant can« 
t>f Great' Britain, which he owes to, and unjuftly detains t^ot plead nui 
from, them. — For that whereas the iaid Sumuef Lews, ^*«* record» 
Vol. I. S smd 


and alfo one David Beany fincc dcceafed, in the life-time 

of the faid Davidy and which faid Davidy afterwards, and 

Walkek before the faid Samuel znd Lewis htczmc bankrupt, died, 

againft and the faid Samuel and Lewis furvived him; that is to 

Witter, fay, at Weßminßer in the county oi Middiefexy heretofore, 

to wit, on the lad Tuefday in Mayy in the fixth year of the 

[21 reign of our fovereign lord the now king, and in the year 

• 176Ö, in a certain court of record o{ our faid lord the king, 

called the fuprcme court of judicature held for our faid 

lord the king, at the town of St. Jago d^ la Vegay in the 

county of Middlefexy in and for the ifland of Jamaicay and 

within the jurifdiction of the faid court, on the faid laft 

^uefday of Mayy in the faid fixth year of our faid lord the 

now king, and in the year 1766, before the honourable 

Thomas Beachy Efq; chief judge of the faid court, and his 

' afTociates then fitting judges of the fame court, by the con- 
fideration and judgment of the fame court, recovered againft 
the faid W^illiam a certain debt of 220/. current money of 
the faid ifland oi Jamaica y and alfo i/. i6s, 3</. for their 
cofts and charges by them, about their fuit, in that behalf 

^ expended, to the faid Samuel, Lewis and David Beatiy in 
the life-time of the faid Davidy by the faid court, of their 
alien t adjudged, whereof the faid William is convidled, as 
by the record and proceedings thereof remaining in the faid 
court at the town ö/'St. Jago de la Vega more fully appears ; 
which faid judgment ftill remains in that coiut in full 
force, unrcvcrfed, unpaid and unfatisfied •, that is to fay, at 
Weßminßerxn the faid county of Middlefex ; and that nei- 
ther the fiiid Sumuely Lewis and Davidy or cither of them., 
in the life-time o£ the faid Davidy nor the faid Samuel znd 
Lewisy or either of them, fince his deceafe, nor the faid 
IfaaCy Francis y fohiy Colwy Thomas and Alexander y as aflign-. 
ees as aforefaid, oreither of them, have yet obtained execu- 
tion of the aforefaid judgment, and the faid Jfaacy Francis^ 
Johuy Coliny Thomas and Alexander in faft fay, that the 
debt, cofts and charges aforefaid, fo recovered as aforefaid, 
amount to a large fum of money, to wit, to the fura of 
158/. 8 J. 9 ^/. of like lawful money of Great Britain y that 
is to fay, at Weßminßer aforefaid in the faid county of 
Middlefexy whereby an aftion hath accrued to the faid Ifaac^ 
Francisy Johiy Coliny Thomas and Alexander y as afTignees as 
aforefaid, to demand and have, of and from the faid Wil- 
liamy the faid fum of 158/. 8/. 9//. of lawful money of 
Great Britain y parcel of the fum of 594/. ox. 4^. above 
demanded." — ^Then there was a fecond count in the fame 
form, ftating a like judgment of the court in Jamaica fox 
608/. and i/. 16/. 3 J. cofts, of Jamaica currency, or 
435/. 11/. 7//. fterling, being the refidue of the fum of 
^94/. OS. 4d, demanded in the aüion. — The defendant, 
3 befidea 


befides ml debet j pleaded alfo to the firft count, " That 17-78. 
there is not aiiyftuh record of the recovery of the f^rid debt, \^^^^^ ^---^ 
cofls and charges in the faid firft count of the faid dccla- Walker. 
ration mentioned • againft him the faid William^ in the faid again It 
court of record of our faid lord the king, called the fupreme Wi ite r. 
court of judicature held for our faid lord the king at the * [ 3 ] 
faid town of S/, Jago de la Vega^ in the faid county of 
Middlefex^ in and for the faid ifland oijamaha^ and within 
the jurifdiftion of the faid court, before the honourable 
Thomas Bcachy Efq; chief judge of the faid court, and his 
aflbciates, then fitting judges of the fame court, as the faid 
plaintiffs have, in the faid firft count of their faid declara- 
tion, alleged, and this he is ready to verify ; wherefore, 
(5*t-." — ^There was a fimilar plea to the fecond count. — 
Upon the nil debet^ the plaintiffs took ifTue, and the trial 
coming on at the fittings in Weßminßer Hally after Eußer 
Term 1 778, a verdiiä was found for the plaintiffs. -To the 
pleas of nul tiel record^ the plaintiffs replied^ that there wa^ 
luch record, £s*r. (in the words of the pleas) " and this 
they the faid plaintiffs are ready to verify by the faid record; 
and thereupon a day is given to the faid plaintiffs on, £5*^. to 
come before our faid lord the king wherever, £5*c . to produce 
the faid record^ and the fame day is given to the faid de- 

In Trinity Term^ 18 Geo. 3. thefc iflues in law came on to 
be argued ; the judgment on which the aft ion was brought 
having been brought into court, under the feal of the court 
of 7^/;;^?/V^. 

The Soliiitor General ( Wallace y) and Dunning^ for the 
plaintiffs ; Graham^ Bower^ and 5. Heyivocdj for the de- 
fendant. — ^The cafe ftood over till this day, when it was 
again argued by the fame counfeh 

For the defendant, feveral grounds were taken. — It wa« 
contended, that an aftion of debt could not be maintain- 
ed on a judgment in a foreign court ; or, that, if debt would 
lie, yet it could not be maintained as on a fpecialty, but 
that the confideration of the judgment ought to be fhewn 
in the declaration. That, if this judgment were to be 
confidered as a fpecialty, the court hadnojurifdiftion, be- 
caufe adions on Judgments are local, and muft be tried 
in the county where the judgment is given. — ^Thefe ob- 
je&ions, if fuccefsful, would have entitled the defendant 
to an arreft of judgment on the verdict found for the 
plaintiffs on the nil debet, — On the iffues joined on the mtl 
tielrecordf it was infiftcd, thattliere muft be judgment for 
the defendant, becaufe the judgment in Jamaica was not 
a record, in the proper legal fenfe of the word. 

For the plaintiffs, it was fai^i, that it is an eftablifhed 

maxim, that, where indebitatus ajfumpftt will lie, debt will 

alfo lie \ and that this court had determined, in the cafe of 

B ^ Craivfcrd 


I778# Craivßrd Y. Wkitial ( a ) [i'\y that indebttaius ajfumpftt majf 
^ / M be maintained on a foreign judgment. That it was alfa 
Walker determined, in that cafe, that the judgment is, of itfelf, 
againft prima fack evidence of the debt, and, therefore, the plain- 
WiTTER. tifF is not bound to flicw any other cbniidcration. That, in 
Sinclair v. Frafer (bj^ which was an appeal from the court 
of feffion in Scotlami to the houfe of lords, in the cafe of 
an aftion brought in that court on a judgment in Jamaicaj 
it was laid down, as a general principle, that fuch a judg- 
ment is prima facie evidence of a debt, though it rs com- 
petent to the defendant to impeach the juftice of the judg- 
ment, by fliewing it to have been irregularly, or unduly, 
obtained* That the plea of nul iiel record was abfurd, and 
' that the judgment ought to be tlic fame as if there had 
bccri no fuch plea. 

Upon this, and the former occafion, were cited (among 
other authorities) befides Crawford v. Whittalj and Sinclair 
V. Frafer y the cafes of Olive v. Givin ( c)^ Otway v. Ram- 
fey (d)y and Campbell v. Hall (e). f i 


(a) H. 13 Geo. 3. 6, R, 

[ I ] The cafe of Crawford y. Whit- 
Salv/zs argued and determined m B.R, 
/f. 1 3 G. 3 . It was an adlion of inde- 
bitatus ajjitmpßt, brought by Crawford 
as admbiilrator of one Margrave, in 
which he declared, that the defendant 
was indebted to him, as adminiilratory 
*• in the fum of y/^j L fterling, for 
6904 rupees 10 anna^ and 9 pice, of 
current money of Bengal in the Eaß 
Indies f by a certain judgment of the 
|ionouraÜe the mayor's court at Calcut- 
ta, at Fort William in Bengal afore(aidi 
holden before, ^c, before that time^a/i«. 
on,(5rr. adjudged and awarded to be paid 
by the iaid defendant to the faid plain- 
i\R, as adminiftrator as aforefaid, for 
a certain demand of the faid plaintifF, 
as adminiftrator as aforefaid« iued and 
profccuted in the fame court, of 5801 
rupees, lac, together with intereft due 
thereon from, ISc, till, l^c, at the rate of, 
fcff . being, l^c, current money q£ Bengal 
aforefaid, and coih of fuit, being, l^c. 
making together the faid fum of 6904 
rupees, l^c, which faid judgment is in 
force and unfatisfied ; and which faid 

6904 rupees, i^c, at the time of re- 
covering the faid judgment, were and 
yet are of the value of the faid 747 /, y 
and being fo indebted, the defendant, 
afterwards, in confiderationof the prc- 
mifes, undertook to pay.*' — There 
were other counts to the like effeA ; 
fome of them dating the fum only i» 
Eafl India monty,—iome varying the 
amount, — and fome Hating the judg- 
ment without adding, ** for a certain 
demand*, ^f."— The defendant de- 
murred fpecially to this declaration, 
and fhewed for caufe, that there was no 
profert of tl)e letters of adminifhation« 
— It was argued, on Tuefday, the 9tk 
of February, by Fcarnley for the de- 
fendant, and MansfiU for the plaintiff, 
— Two points were made for the de- 
fendant : I . That afTigned for caufe of 
demurrer; 2. An objedion to the 
fuhßanct of the declaration, «i;/«. that 
the grounds of the judgment abroad, 
and the caufe of adkion there, ought to 
have been (hewn. The cafes of Duplein 
V. De^Roven (f), and Bouules v. Brad'- 
ßarw (g), (which was indebitatus of" 
jwnpßt on a judgment in the court of 
^^^^^^^^^^ Exchequer 

(h) Cited in i^i» Dutcheß of King-- 
ßon*s Cafe, p. 64. 

(c) T. i6^%.Hard. 118. 

(dj M.iiG. 2. B. R. 2 i/r. 1090, 

CeJ M. 15 G. 3. B.R. 
+ 1 Since reported, Ccnup^ 

(f) 2 Vem. 540, 

(g) M. 22 QcQ. 2c MSS, 



Lord Mansfield, now and on the former occafion, faid, 
that the plea of nul t'tel record was improper. Though the 
plaintiffs had called the judgment, a record, yet by the 
additional words in the declaration, it was clear they 
did not mean that fort of record to which implicit faith is 
given by the courts of Weßminßer HalL 1 hey had not 
mifled the court, nor the defendant, for they fpoke of it as 
a record of a court in Jatnaica. The queftion was brought 
to a narrow point, for it was admitted on the part of the 
defendant, that indebitat»tis aßanlftt would have lain, and 
on the part of the plaintiff's, that the judgment was only 
prima facie evidence of the debt. Thaf being fo, the judg- 




Exchequer in Ireland) were cited. As 
to the fir ft point, the court faid, that 
frofert of the letters of adminill ration 
was unncceffary ; becaufe, in this ac- 
tion, the plaintifF had no occafion to 
have defcribcd himfelf as adminiffra- 
tor [t:^]. -Second point; Aßon, Juli. 
The declaration b fufficient; we are 
not to fuppofe it an unlawful debt. 
Jß?burß, J uft. I have never feen this 
doubted ; 1 have often known affumißt 
brought on judgments in foreign courts ; 
the judgment is a fuflicient confider- 
ation to fupport the implied promife, 

— Judgment for the plaintiff". In 

the cafe of Sinclair v. Fra/er, an aftion 
had been brought by Sinclair in the 
court of fefiion in Scotland, upon a 
judgment of the fupreme court in Ja- 
maica, The court of fefiion determin- 
ed that the plaintiff" was bound to prove 
before them the ground, nature, and ex- 
tent, of the demand on which the judg- 
ment in Jamaica had been obtained. 
But, opon an appeal to the houfe of 
lords, they reverfcd the decifion of the 
court below, pronouncing the following 
fpecial order of reverfal : «* ft is declared, 
that the judgment of the fupreme court 
of Jamaica ought to be received as 
evidence, prima facie, of the debt, and 
that it lies upon the defendant to im- 
peach the juftice thereof, or to ftiew 
the fame to have been irregularly or 
vndnly obtained : it is therefore order« 
ed and adjudged, that the faid feveral 

interlocutors complained of be, and the 
fame are hereby reverfed.*Y^>^— While 
the cafe of H alker v. Witter was de- 
pending, a writ of error was to have 
been argued in the Exchequer chamber, 
in a caulc of Plaiflow v. Fan Uxem, 
which is the laff cafe that has arifen 
upon this queftion relative to foreign 
judgments. It was an ^dlion of inde- 
hitatm aßsmpfit in B. R\ on a judgment 
in a court called the court of ordinance 
at Ghent, The plaintiff* Fan Uxem had 
a verdid, and judgment, upon the fe- 
cond count of his declaration, which 
only ftated that the defendant was in- 
debted to the plaintiff in, ^c, upon 
and by virtue of a judgment obtained 
in the faid court ; ** and being fo in- 
debted," ^r. without faying any thing 
of any demand for which the judgment 

was given. Bear croft had moved 

the court of B, R, in arreft of judg- 
ment, but was rcfufed a rule to (hew 
caufe. — The plaintiff in error afiigned 
for errors, fpccially. That it did not 
appear by this fecond count upon what 
account the judgment abroad was 
given } and that it did not appear that 
it was given on account of any juft 
debt, or for any other good and fu^cient 
caufe of aftion. — The caufe was fet 
down for argument on the 261h of June, 
T, iS Geo. 3. but no body appeared to 
argue on the part of the plaintiff" in 
error : and the judgment was affirmed 
of courfe. 

[ty] S. P. Bonafous v. PFalker, (h) 4th March 177 1, cited m the 

B. R. M. 28 Geo. 3. l Term. Rep. DutchefsofKingßon'iTrial.wHargr.St^ 

426. 128, n. («). TV. 122. col. 2, 

B 3 


1778. nient was not a fpccialty, but the debt only a fimpl«-con- 

1^ _. ; traft debt; for ajfumpfit will not lie on a fpecialty. The 

Walker, difficulty in the cafe had arifcn from not fixing * accurately 

againft what a court of record is in the eye of tlie law. That 
Witter, defcription is confined properly to certain courts in Englandy 

♦ [ 6 ] and their judgments cannot be controverted. Foreign 
courts [cO* i}; and courts in England woX. of record, have not 
that priviL'ge, nor the courts in Walesy ^c. but the doc- 
trine in the cafe of Sinclair v. Frafevy was unqueftion- 
ablc [f 2]. Foreign judgments arc a ground of aciion every 
where, but they are examinable. He rccolicftcd a cafe of 
a decree on the chancery fide in one of the courts of great 
feflions in li^alesy from which there was an appeal to the 
houfe of lords, nnd the decree aöirmed there ; afterward^;, 
a bill was filed in the court of cliancery, on the foun- 
dation of the decree fo aifirmed, and Lord Hardwicie thought 
himfclf entitled to examine into the juftice of the decifion 
of the houfe of lords, becaufe the original decree was in 
the court in WalcSy whofe dccifions were clearly liable to be 
examined [t3]. — [(0*2] (He alfo mentioned a cafe on the 


to" '] According to his lorJfhip's 
opinion in Bemardi v. Mvttcux, (infra 
581.) the judgments of foreign courts of 
admiralty^ as to matters within their 
jurifdiftion, cannot be coiitrovcrted. • 

[t 2] S. P. in the Court of Sfßon, 
Cochran v. Tke Earl of Bucban, "Junf 
1698. Sir H. Dalr. Deciftons l. 

[t 3] iEq,Ca.Abr.%i,pLi. If 
quierdo v. Forbes ^ B, R. H. 24 Geo. 3. 

[X]^ 2] Galhraitb v. Neuville, B. R. 
^. 29 Geo. 3. Adlion of debt on a 
judgment in the fupreme court of Ja- 
inaica. Verdidl for the plaintiff; and 
a rule to (hew caufe why there fhould 
not be a new trial. Laijc^ for the 
plaintiff; Bower, for the defendant. 

Lord Kenyott, I cannot help entertain- 
ing very ferious doubts concerning the 
doftrinc laid down in JValker v. Witter, 
that foreign judgments arc not binding 
on the parties here. But when I am 
told that Lord Hardwicke did not hold 
bimfclf bound by a decree on the chan- 
cery fide of the court of great feflions 
in JVali's, affirmed in the houfe of lords, 
I own I am quite loft in a maze. How 
fuch a decree could have come in revi- 
fion before Lord Hardwicke, as chan- 
cellor, I cannot conjefture. It is pcr- 

fedUy well known, that the court of 
great fefiions is an independent tribu- 
nal, from which no appeal lies to the 
court of chancery. There certainly 
rou(l have been fomething clfe flated 
that does not appear in the report. The 
procedings in Wales might polübly have 
affeded the rights of pcrfons living out 
of that jurifdidion. In fuch a cafe, s^ 
prohibition would be granted, and the 
rights of fuch perfons would not be 
bound. Perhaps when thofe rights af- 
terwards came in quelHon, on a fimilar 
ground, in the court of chancery. Lord 
Hardwicke might fay, that he fhould 
not confidtT himfelf as bound by the de- 
cree in Wales, except as far as any de- 
ference might be due to the perfonal 
authority of the judges who had deter- 
mined the quedion there. But to fay, 
that he could alter or open the difcuf- 
fion of thofe rights which had been 
finally and lawfully fettled there, is a 
pofition again ft which I mufl enter my 
proteft. In Mofes v. Macfcrlan (1), 
Lord Mansfield faid, " The merits of 
a judgment can never be over-haled by 
an original fuit, either at law or in 
equity. Till the judgment is fet afide, 
or reverfed, it is conclufive, as to the 
, fubjea 

(1) B. R.£, 33 Geo, 2. 2 Burr. 1005. 


'mortmain aös to the fame purpofe) — Debt may be brought 
for a fum capable of being afcertained, though not afcertain- 
ed at the time of the action brought. — (It had been faid at 
the bar, that the value of Jamaica currency was fluftuating 
and uncertain) — It is not neceflary that the plainf iff in debt^ 
-Ihould recover the exaft fum dcmande<l [f 4]. 

WiLLES, Jttjlice^ of the fame opinion. 

AsHHURST, Jujl'ict^ of the fame opinion,— He faid, that, 
in Indebitatus ajfum^tt on a foreign judgment^ the- judg- 
ment is fhewn as a conjirieration ; and, wherever indebitatus 
ajjum^it can be maintained, debt will lie, 

BuLLER, Jußice^ of the fame opinion. — He obfcrved, that 
all the old cafes flicw, that, whenever indebitatus ajfumpftt i« 
maintainable debt alfo is. Till S/adt's cafe, a notion 
prevailed, that, on a fimple contraö for a fum certain, the 
aftion muft be debt : but it was held in that cafe, that the 
plaintiff had his eleäion either to bring affum^ifi ox debt, 


fubjcJl matter of it> to all intents and 
purpofes (2)." And though, in the 
Du* chefs of KJngßotC 5 Cajc, it was htld, 
that the judgment; of tne ecdeilaftical 
court might hz examined, yet that was 
on the ground of fraud. The judges, 
.there, were of opinion, that you might 
reply per fraudem to a judgment. That 
is not an authoritv for faying, that we 
can revife the judgments of the lowed 
courts in foreign countries, where they 
have competent jurifdittion. — His lori- 
(hip then made fome obfervations on 
the particular evidence in the cafe, 
which it is unneceffary to ftate. 

Bullcr, Jußice^ The dodlrine which 
Was laid down in Sinelair v. Frafer has 
always been confidercd as the true line 
ever fmce; namely, that the foreign 
judgment fhall ht prima facie evidence 
of the debt, and conclufive till it be im- 
peached Ijy the other party. I have 
often heard Lord il/ÄÄj/rV/^ repqat what 
was (aiä by Lord Hardv:icke in the cafe 
alluded to from M^alrs ; and the ground 
of his lordfhip's opinion was this : when 
you call for my affi (lance to carry into 
effed the dccilion of fome other tribu- 
nal, you fhall nut have it, if it appears 
that you are in the wrong ; and it was 
on that account, tliat he faid, he would 
examine into the propriety of the de- 
cree. As to aftions of this fort, fee 
how far the court could go, if what 
was faid in Walker v. ff^itur were de- 


^ i 



parted from. It was there held^ that 
tJie foreign judgment was only to be 
taken to be right prima facie ; that is, 
we will allow the fame force to a fo- 
reign judgment, that we do to ihofe of 
our own courts not of record. But, if 
the matter were carried farther, we 
ihould give them more credit ; we (hould 
give them equal force with thofe of 
courts of record here. Now a foreign 
judgment has never been confidered as 
a record. It cannot be declared on as 
fuch, and a plea of nul tiel record, in 
fuch a cafe, is a mere nullity. How 
then can it have the fame obligatory 
force ? In Ihort, the refult is thiü ; that 
it \s prima facie evidence of the juftice 
of the demand in an adion o^ afjumpjity 
having no more credit than is given to 
every fpecies of written agreement, 
i;/z. that it ihallbe confidered as good 
till it is impeached.— He then alfo re- 
marked on the particular evidence. 

The rule made abfolute ; the court 
recommending, that the queilion of law 
(hould be put on the record, if it ihould 
arife again at the fecond trial. 

Videt as to the conclufive nature of 
foreign judgments. Burroughs v. Ja^ 
mineau. Cane, M, 13 Geo, i, 12 /^//r. 
^j.pL 9. Ca, Temp.Hardiv, 87. Boucher 
V. Lavjfoitt B, R. //. 8 Geo, 2. Ca, 
Temp. Hard'-w. 85. 89. 

[t 4] ^ß^f^ V. Lo-vj, C. B. T. iS 
Geo. 3. 2 Blackfi. i2i\\ 

(2) Burr, 1009. 



1778. ^y the arguments in Vaughan (a)^ it fccms the do£lrine 
^ ^j ' ,, of Slades cafe was not approved of at firft, and from the 
Walker manner in which the ftatutc of 3 Jac. i. r. 8. is penned, it 
igainll is probable the aöion olajfumlfu was not then much in ufc 
Witter, in fuch cafes. Afterwards, however, it became very generaU 
[ 7 ] and that is the reafon why we meet with no inftances in 
the books, of debt brought on foreign judgments* As to the 
point that the judgment is not a record, and that the de- 
fendant mud have judgment on the pleas of nul tiel record^ 
there is no foundation for it, becaufe it is floated to be a 
judgment of a co\irt in Janmica. As fuch, it is to be tried 
by the countrv, (as it might have been in this cafe, on the 
nil debety) and not by the court. The prout tatet per re-- 
cordum in the declaration, is abfurd and may be rejefted, 
and the plea of nul tiel record is a mere nullity. The 
plaintiffs have done right to (late the judgment in the 
manner they have done, becaufe that is matter of de^ 

Judgment for the plaintifFs. 


When a baf- 
tard having a 
different Ict- 
tlement from 
the mother, 
lives with her 
for niiiturc, 
the pariih 
where the 
baftard's fct- 
tlement is, 
mv(k main- 
utn it. 

Friday, 13th SiMPSON and Others, atrahijl Johnson and 


^TpHIS was a cafe referved for the opinion of the courts 
-■' on an aöion of debt, on a bond.— The caufe was 
tried before Eyre, Baron ^ at the lad aflizes for the county 
of EJfex, The fubflance of the pleadings was as follows : 
— ^The plaintiffs having declared in the ufual form, tlie de-^ 
fendants craved oyer of the condition of the bond, which 
was in thefe words \ — " Whereas Jemima Wafs of Wickham^ 
** St, Paul aforefaid, fingle woman, hath by her voluntary 
" examination taken upon oath liefore Charles Hurrely Efq. 
'* one of his Majeily's juflices of the peace in and for the 
*' faid county, declared hcrfelf to be with child, and that 
** the faid child is likely to be born a baftard, and to be 
" chargeable to the faid pariih of IFickham St. Paul^ an4 
** that James Johifin above named, wheelwright, is father 
'• of the faid child ; now the condition of the, above obliga- 
•< tion is fuch, that if the fai4 James Johtifon^ his heirs, exe- 
** cutors, or adminiftrators, do, and (liall from time to time> 
•* and at all times hereafter, fully and clearly indemnify, 
•* and fave harmlefsy as nvell the above named churchwardens and 
«« overfeers of the poor of the faid parifli of Wick ham St. Paul, 
" and their fucceilbrs for the time being, as alfo allandftngu^ 
•* lar the other parißncners an J inhabitants of the feud parijb 
*' of Wichham St. Paul, which now arc, or nereaUer (hall be 
•* for the time being, of and from all manner of cofts, taxes« 
^ rates, affeffments, and charges whatfoever, for or by reafo^ 

faj 101. 

«< of 


<< of the birth, education, and maintenance of the faid child^ 
*< and of and from all aäions> fuits, troubles, and other de- ^ 

** mands and charges whatfoever touching and * concerning Si mpson 
*' the fame ; — ^Then this obligation to be void, otherwife againft 
*^ to remain in full force/' — ^"rhey then pleaded that, after Johnson, 
the execution of the bond, and after the woman had de- * C 8 J 
clared that (he was with child, that the child was likely 
to be bom a baftard, and to be chargeable to the pariih 
of Wuhham St, Paul^ and that John/on was the father, 
ihe removed herfelf voluntarily from Wickham St, Paul, 
to the pariih of Gueßingthorpej and was there delivered of 
the fame baftard child, by reafon whereof the faid child 
nvas lawfully fettled in the parifh of Guefingthorpe^ and was 
tiot^ nor at any time fince its bifto had been chargeable /a, or 
/awfully fettled in the parifh of Wickham St, Paul; and tha^ 
if the aboyenamed churchwardens and overfeers of the pa- 
rifh of Wickham St, Pauly and their fucccflbrs for the time 
being, and the parifhioners and inhabitants of the faid pa- 
rifh, or any of them for the time being, had, at any time, 
.from the making of'th^ bond, been damnified by reafon 
of the birth, education, and maintenance of the child, or 
by reafon of any adion, fuit, trouble, and other charge 
whatfoever touching the fame, they had been fo damnified 
of their own proper and voluntary afts, and wrongs, and 
againft the will of the faid fohnfon the reputed father of 
the faid baftard child. The plaintiffs replied, that the 
purifh of Wickham St. Pauly before, and at the time of the 
birth of the child, was, and ft ill continued to be, ihe place 
of the mother^ s legal fettlement^ and that, foon after her 
delivery, fhe returned to Wickham St, Paul, and brought tht 
child with her^ to be there nurfed and nurtured^ that the 
child had remained there ever fince, being ftill under three 
years of age, and that from the return of the mother with 
the child, till the bringing the aöion, neither Johnfiuy nor 
any other perfon on his behalf, had found any provifion 
for the child; by reafon whereof the inhabitaÄts and 
parifhioners of Wickham St. Paul during that time, lefl 
the child fhould die for wapt of necefTary food and nur-* 
ture, were forced to expend, and did expend, the fum of, 
i^c, in providing necefTary food for the faid child, and fo 
were, otherwife than of their own wrong, damnified by 
reafon of the maintenance of the faid baftard child. The 
defendants in their rejoinder faid (as before) that the in- 
habitants and parifhioners of Wickham St. Paul had laid 
out the money mentioned in their replication, of their own 
wrong, and were damnified of their own wrong 5 on which 
rejoinder, ifTue was joined. The jury found a verdift for 
the plaintiffs with one fhilling damages. — ^The fafts, as 
(lated in the cafe, were thefe : The defendant Johnfon being 
apprehended by virtue cf a warrant under the ftatute of 6 
13 Gio^ 



Geo. 2. c. 3. gave the bond in queftion to indemnify the 
parifh of Wickhnm St. Paul. Afterwanis Jemima IVafs was 

Simpson delivered of the child mentioned in the pleadings, whidi 
againft was born a baftard in the parifti of Gueßingthorpe, After 

Johnson, her deJivcry, flie reti^med to the parifh of IVichkam St. 
Piiuly where fhc was legally fettled, carrying her child 
with her, in a ftate of pcrfeft health, and received one 
Ihilling and fixpencc per week from the plaintifF Simpfon^ 
one of the overfecrs of the poor of the parifli, for the 
maintenance of herfelf and her child. No demand was 
made at any time on Johnfotty who lived in the adjoining 
parifh of Gticßinfrthorpey but r. demand was made by Sivip- 
fon on Robert Doltey (one of the co-obiigors) to defray the 
cxpence above flated, which he refufed to do. Laf^Iy, 
there was no order made by a juflice or juflices of the 
peace, direfting the allowance of one fhilling and fixpencc, 
or any other fum, to be made by the parifh officers of 
JFirhhn?n St. Paul. 

J Pcckham for the plaintiffs. Rous for the defendants» 

The court were lb clearly of opinion with the defend- 
ants, that they would not hear their counfel. — J^ord Alans- 
field faid, that tlic payment by the parifh officers of Wick- 
hnm was doubly voluntary: firft, bccaufe there had been 
no order upon them to pay [cjf*] ; and fecondly, becaufc 
they were not liable to maintain the child, but the parifh 
where it was born j and they fhould have applied to the 
officers of that parifli [2]. 

Judgment for the defendants. 

[Ö*] But if the child had been born Hemlington to Darlington, in which lafl 

in their parifti, and they had paid for parifh fhe had two baftard children, 

its maintenance, without an order, the and there became chitrgcable. An or- 

aflion would have lain. Hays v. Bry- der being thereupon made for the re- 

4int, C. B, T. 29 Geo. 3. H, BL 253. moval of her and Mary to Hemlington, 

[2] This qucftion, <vix. •• Whether fhe took the two children who were 

** children under fcvii» years of age, bom in Darlington with her, they bc- 

** who arc living with their mother for in g^ both under the age of emancipa- 

" nurture, at the place of the mother's tion; Two juflices made an order on 

*• fettlemcnt, but whofe own fettlement the parifh of Pir/rVig^/fliT for the mainte- 

" is in another pari(h, arc to be main- nance of the two children born in that 

•* tained by the parifh where the mo- parifh ; which order, upon an appeal, 

** ther lives and is fettled, and from was quafhed. Davenport fhcwed caufe 

" whence they arc irremovable, or by in fupport of the order of fcflions. Af- 

" the parilli where they are fettled ;" tcr mentioning the cafes of Wang ford 

came on, and was determined in the v. Brandon, and others flated in Burn, 

court of B. R. in H. 17 Geo. 3. in the (i) he made fimilar obfcrvations upon 

cafe of the King v. the Inhabitants of them, to thofe which are to be found in 

Hemlington. The cafe was this I'^Eli- Burnus note, wiz. that what had been 

Tiaheth, a fingle woman, with her child faid in thofe cafes relative to the pre- 

^larj, went under % certificate, from fent queflion, was only matter of argu- 

; mcnt, 

(/') 3 Burn^% Jufl. p. 336, 337. 13th Ed. 



nicnt, the point in difpute in all thofe 
cafes having been t)M^ß/t lerne ntj not the 
maintenance. He mentioned that Bumf 
in another place (rf), Teemed fully of 
opinion, that the parifh of the mother 
is liable; and contended, that it was 
contrary to the fpirit and intention of 
the 18 £/. f. 3. to burthen the parifh 
where ballnrds are born with their fup- 
port. That the inconvenience of fuch 
a pradlice would be very great, in n»- 
uy cafes where the two, pariihes might 
be fituated at oppoiiie extremities of 
the kingdom. That there is no (lat-ute 
which gives the jufUccs any authority 
to make an order for the maintenance 
of children on a parifii where they do 
not aftually refide. That there are 
only two indances where a power of 
that nature is veiled in jullices, o/zz. 
I . Where it is neceii'ary to affefs one 
parilh in aid of the poor-rate of an- 
other; and 2. in the cafes of paupers 
improperly removed. That it would 
be much more expedient, that the pa- 
rifh which is bound to maintain the mo- 
ther, (hould alfo maintain, as cafual 
poor, the children which Ihe had a 
right to bring with her, and which 
could not be taken from her before the 
age of feven ; and that he had been 
informed, that the pradice had been 
conformable to what he contended for. 
Wallace was going to anfwer Da^venport^ 
but the court Hopped him, and faid 
that the point was clear and fettled. — 
Lord Mansfield y — Mr. Davenport has 
cited no authorities in fupport of Dr. 
Burn's proportion, and there are many 
againft it, 'vix. " Rex v. St, Gileses in 
" the Fields (/), Rex v. Wangford (;w), 
and Rtx v. Saxmundham («), which is 
direftly in point. The praftice is alfo 
agreeable to thofe c^fcs.^^JjIcn Juft. 
cited another cafe, where it was direftly 
held that the parifh where the fettle- 
mcnt of the nurture child is, fhall 
maintain it. — Judgment to quafh the 
order of feillons and confirm the origi- 
nal order by which the parifh of Dar- 
lijtgtoM^v/aiS charged. 


again ft 


But the caic 
Mr. Davett" 

The cafe of Sax-^ 
mundham is very Ihort 
in Forte/cue (0), and the 
point is merely flated as 
a pofition, without the 
fads or orders, or the 
reafoning of the court, 
of the inhabitants of 
V. Bolney {0), which 
port mentioned in his argument, was 
exadly the fame with the prefent, 
for there can be no diflindlion (as 
to this quelHon) between baflards 
and legitimate children» who have p, 
different fettlemcnt from their mother. 
In that cafe, a woman with three child- 
ren, all under feven, being fettled in 
Sbermandbury, married a perfon fettled 
in Bolney. After the marriage, the 
mother and the three children were fei\t 
to Bclney, The parifli of Sbermandbury, 
before the marriage, allowed three (hil- 
lings per week for three children ; and 
the payment being difcontinued after 
the marriage, on complaint of the pa- 
rifh of Bolnty, two jufliccs made an or- 
der that Shernmndhury fhould continue 
to pay the three (hillings. The M- 
fions, and afterwards the court of B, R. 
confirmed the order of the juflices. 
And the court faid, " This cafe is 
«' within the equity of the ftatutc for 
'* the relief of the poor, and there is 
** no reafon that Sbermandhury fhould 
*' be difchargtd of the children by 
*' their mother's marriage." This cafe 
is cited in Bctt from Cartbeiv, but for 
another point. It has been fuppofed 
that there might be difficulties in ob- 
taining and enforcing an order, in a 
cafe like the prefent. But the cafe of 
Sbermandhury v. Bolney fhews, that the 
juflices of the county in which the pa- 
rifh liable is iuuated, ought to make 
the order, on the complaint of the pa- 
rifh officers of the parilh where the mo- 
ther lives. The order in the cafe of 
Hemlington was probably made in tlie 
fame manner. The inconvenience when 
the two pariflies are at a great dillance 
from each other, is only fimilar to what 


<i) p. 326. 

(/) r. 6 ef 7 Cap. 

Cafes, No. 2. 

(m) 12 WiL 3. Foriefc, 307. 
2. Burr^ Scttl. («) Tranfcribed by Bott, p. 254. 
(«) Cartb. 279. 





A warranty 
on the mar- 
gin of a poli- 
cy inuft be 
ftiiaiy fol. 
^owed, as 
much as if 
written in the 
body of the 
ynfti-ument. — 
" Thirty ica- 
men betides 
means tl^irty 
perfons be> 
longing to 
the (hip*s 
fook» fur- 
geon^ boys. 


Bean agabifl Stupart. 

THE plaintiff infurcd the fliip called the Martha^ at 
and from London to New Torky the voyage to 
commence from a day fpecified j and, on the margin of the; 

policy, were written thefe v/ords, •" Eight nine-pounders 

" with clofe quarters, fix fix-poundcrs on her upper decks, 

" thirty feameiij bcfides pajfengers^ r-The fhip failed from 

the Downs on the id of Marchy and was taken on the 
loth, by an American privateer, and was fent, with a prizc- 
mafter on board, to make tl>c port of Bojlon. On the 30th 
pf Mayy the plaintiff brought tnis action againi^ Siuparty an 
underwriter on the policy ; on which Stupart paid the prcr 
mium into court, and pleaded the general ifluc. About 
the öth of Juhy and before the trial, accounts were re- 
ceived th It tlie fhip had been retaken fomc time in Maj^ 
and carried into Halifax, — ^The caufe came on fo> trial 
before Lord Mansfield, and a fpecial jury, at Gmldhally at 
the Sittings after Trinity Term, 18 Geo. 3. The defence fet 
up was, that the^e were not lYixxiy feamen on board the fhip, 
according to the terms of the ftipulation in the margin of 
the policy : and, in fa£l, it appeared upon the evidence,^ 
that, to make up tliat number, the plaintiff reckoned the 
fteward, cook, furgeon, fome boys, and apprentices, and 
fome perfons defcribed as men learning to be feamen 5 anc^ 
that only twenty-fix perfons had figned the ftiip'-s articles. 
It alfo appeared that there were feven or eight paffengers 
on board. 

Bearcrofty of counfel for the defendant, contended, That; 
this was a warranty, not a reprefentation, and that being 
fo, it muft be literally and (Iriclly complied with. 'ITiat fea-> 
men meant men trained to the occupation of mariners, either 
fuch as are called able-bodied, or at lead ordinary feamen, 
in oppofition to landmen, and could never include boys, 
or the fteward, cook, and furgeon, of a fhip. That, at any 
rate, none but thofe who had figned the articles were to 


15 experienced on appeals brought on 
removals from parifhes at a great dif- 
tance. As to the method of enforcing 
the order, it may be done by indifl- 
jnenty or perhaps the parifh officers, in 
whofc behalf it is made, might maintain 
a fpecial aftion of aßimpßt againft thofe 
upon whom it is made. Vide Rann v. 

Green, B. R. M. 17 Qe?. 3. [f 5], 
where the court held, that when per- 
fons afling under a private adl of par- 
liament, make an qrder by authority of 
fuch aft for the payment of moncy^^ 
the law raifes an affumpfit. The fame 
reafon muH hold m the cafe of a pub^ 
lie aft. 

[t 5] Rex V. Toms. E, 20 Geo. 3, In/ra, p. 386. Rann v. Grfca^ Äncc r#^ 
ported, Cowf. 474. 


be confidered as feamen, and then the number warrÄnted 
was not compleat. That, in the late cafe of Pawfon againft 
Ewer [3], it had been determined, that the * ftricl words 
of a rcprefentation need not be fulfilled, provided the 
departure from them is not materially to the prejudice of 
the infurers, but that, in the cafe of a warranty,, it is other- 
wife, that being a condition, and taken as part of the po- 
licy ; and that the cilrcumftance of the (lipulation, in this 
ii^ftance, being written on the margin, made no fort of 
difference [4]. He faid the nature of the voyage, which 


{3] Paiu/oH V. Siver^ P^iv/on y. 
&»r//, and Fat^fon v. Watfon [f 6], 
which were all anions on the fame po- 
licy, were argued on a motion for a 
new trial in the court of King^s Bench in 
£eifler term, iS Geo, 3. The cafe was 
Ihortly this:— The broker who made 
•«he infurance fliewed to forae of the un- 
derwriters a paper act ached from the po- 
h'cy, containing inllrudlions relative to 
the force the Ihip was to fail with, *vix, 
*« 12 guns, and 20 menJ^ There were 
no guns or men on board, when the 
policy was fubfcribed. Mr. 1 horntony 
the firft underwriter on the policy, had 
feen the paper (and he had paid) . Wat- 
fou and Znell had not feen it. Eiier, 
who had fubfcribed after them, had ; 
bat they all underwrote at the fame 
premium, which was proved to be the 
premium for fuch a vcfFel as that in 
queftion, when failing without force. 
'llie (hip adually failed with only 10 
guns (four-pounders) and 6 fwivels, and 
with only fixteen men and feven boys, 
beiides paifengers. It was proved that 
Scjj arc entered on the fhip'j» books, 
and confidered on Ihip -board as men ; 
and that 10 guns and 6 fwivels are of 
greater force than 12 guns. That 
upon the whole, the fhip was of more 
force than (he woukl have been, if the 
written inftrudions had been fpecifi- 
caDy adhered to. There were verdifls 
for the plaintiffs ; but on the motion 
fbr a new trial in one of the caufes, 
which was to determine the red, it was 
contended on the part of the defendant, 
that the inftruÄions Ihewn to the firit 
nnderwriter (upon whonl in general all 
the others rely) being in writing, were 
to be confidered as a warranty, which 

[t 6} Since reported, C^wf, 785. 

mud be ftriftly complied with ; and that 
it had not been complied with in thi« 
cafe. The counfel for the plaintifF on 
the contrary maintained, in the firft 
place, that the written paper being fe- 
parate from the policy, was only a re-» 
prcientation, and that it was fufficient 
to comply with it in futftance, or to 
('o what was equally beileficial to the 
underwriters ; but, in the fecond place« 
that the terms had been ftridÜy com- 
plied with, for that fwivds were a fpe-» 
cier of guns, and that boys, in the ma- 
ritime ienfe, were reckoned men or fea- 
men, as oppcfcd to paffenger», Th« 
court were of opinion, that the word 
men in the marine language does in-« 
elude boys ; but they chiefly went upon 
the diftindlion between a <warraniy and 
a reprefentation^ and held that in thi* 
cafe, the inftr unions, though in writ- 
ing, yet being on a feparatc paper from 
the policy, were only a rcprefentation i 
and as they had not been departed from 
fraudulently, nor in a manner detri- 
mental to the underwriters, the policy 
was in force againft them. 

[4] At the Sittings at Guildhall after 
M. 19 Geo. 3. in a caufe of Kenyon and 
another v. Berthen y the following words 
were writt«»i tranfverfcly on the mar- 
gin of the policy : «' In poit 29th of 

^Jiih 1776." The fhip was proved 

to have failed the i3th of July^ and 
Lord Mansfield held that this was clear!/ 
a warranty ; and though the diiFercncc 
of two days might not make any mate- 
rial difference in the rilk, yet as the 
cor.diticn had not been complied with, 
the underwriter vv^as not liable. But, 
1 . though a written paper be wrapt up 
in the policy, when it is brought to 


lyyg. was of a very dangerous fort, explained the condition, and 

^_ that real feamen muft have been meant. He alfo argued 

Bean (though but flightly) that, whatever might be the con- 
again ll flrurtion of the policy, the plaintiff was not entitled to 
St UP ART. recover as for a total lofs, bccaufe the fliip had been re- 
taken, and had never been vifra pntfidla hcßium. Wit- 
neffes were e: amined to explain what is generally undcrftood 
by the v/oxd,* feamen y and it was either in proof, or admitted, 
that, at the cullom-houfe and Grecfnvich hofpital, boys are 
included in that word. 

Lord Mansfield obfcrved, in fumming up to the jury, 
that the import of words mull be collected from the fub- 
jcft, to which they are applied. That if, in the prefent 
cafe, the infured had ftipulated for thirty feamen, heft des 
boys and landmeny then it would have been clear that the 
terms had not been complied with ; but that, in this po- 
licy, feamen were contrafled with paffengcrs, and, in that 
fenfe, the word feemed to include boys as well as men : 
but he left the conftrudlion to the jury. 

The jury having found a verdi6l for the plaintiff as for a 
total lofs, the defendant, in this term, obtained a rule to 
fhew caufe why there fliould not be a new trial. 

On the day for fhewing caufe. Lord Mansfield, after 
reporting the fa£ls as above related, and that he had left the 
conftruftion of the word " feamen'^ to the jury, obfer\'cd 
that he himfelf had thought there was little doubt on the 
queftion, after what had pafTcd in the caufe of Paufon v. 


the unden\'ntcrs to fubfcribc, and 
fliewn to them at that time; or, 2. 
even though it be wafered to the policy 
at th« time of fubfcribing, flill it is 
not, in either cafe, a warranty, or to 
be coniidercd as part of the policy it- 
felf, but only as a reprcfentation. The 
firil of thofe points occurred in a caufe 
of Pazvfon v. Barne'velt (f), tried be- 
fore Lord Mansfield at Guildhall at the 
Sittings in Trinity Term, 18 Geo. 3. 
where the policy was the fame as in the 
cafe of Pawjfon v. E*w€r. The counfel 
for the defendant offered to produce 
witncfTes to prove, that a written memo- 
randum inclofed, was always confidered 
as part of the policy. But his lordfhip 
faid, it was a mere qucfHon of law, and 
would not hear the evidence ; but de- 
cided, that a written paper did not be- 
come a ftrift warranty by being folded 

up in the policy. The fccond occurred 
in Bi%e v. Fletcher {q) [t ?]» tried at 
Guildhall J after E. 19 Geo, 3. where it 
appeared, that, at the time when the 
inl'urers underwrote the policy, a flip 
of paper was wafered to it, dcfcribing 
the ilate of the fliip as to repairs and 
llrength, and alfo mentioned feveral 
particulars of her intended voy.ig«.', 
which particulars, in the event, had not 
been complied with. Lord Mansfield 
ruled, that this was only a reprclent- 
ation ; and, if the jury fhould think 
there was no fraud intended, and that 
the variance between the intended voy- 
age as defcribed in the flip of paper, 
and the adlual voyage as performed, 
did not tend to encreafe the rifk to the 
underwriters, he direded them to find 
for the plaintiff, who accordingly had 
a verdidt. 

if) rhurfday, 25 July 1 779. 
(£) Monday y 31 May 1779. 

[t 7I W^^* ^^* *ö ^^^* 3' ?• *7'- 


Ew^r, That the warranty might have been fo worded as . 1 778. 
only to include able feanien (as if feamen had been oppofcd ^L'^^'^f 
to landmen); but that, as expreffed here, the contralt Bean 
being Mr ith pafTengers, the whole of the crew or fliip's com- againft 
pany appeared to be meant. That this was the general ma- Stupart. 
ritimc {tnk of the word. 

Bearcrofty and Lecy argued in fupport of the rule for a 
new trial. They obferved, that, although the Solicitor Ge- 
fiera/f who had conduced the cuufe for the plaintifF, had [ '4 ] 
not opened the ftipulation in the policy exprefsly either as a 
warranty, or as a reprefentation, but had infifted that it 
had been complied with, his lordlhip had afTumed it to be 
a warranty j as they faid it certainly was. That, being 
a warranty, the cafe of Paw/on v. Ewer did not apply. 
That the fenfc of the word ** feamen" is well underfbood, 
and the diftinöion between feamen and landmen or boys, 
as fully eftablifhed as that between clergymen and laymen. 
That a fcaman is only fuch a perfon as is liable to be 
prefled. As to the queftion, whether it was a total or an 
average lofs, they cited the cafe of Hamilton v. Metnlez (r), 
and contended, that the jury had never taken that point 
into their confideration. 

l^ord Mansfield, — ^^fhe whole argument for the de- 
fendant turns upon begging the queftion. There is no 
doubt, but that this is a warranty. Its being written on 
the margin makes no diflPerence. Being a warranty, there 
is no doubt but that the underwriters would not be liable, 
if it were not complied with, becaufe it is a condition on 
which the contradi is founded. But the queftion is, whe- 
ther, in this warranty, the word ^^ feamen'^ was ufed in the 
ftriti literal fenfe or not. If it was, the warranty has not 
been complied with. It is a matter of conftruftion. Boys 
are reckoned feamen, not only at the cuftom-houfe, and 
Greenwich hofpital, but in the diftribution of prizes. I think 
the parties were not fanguinc at the trial. The fpecial jury, 
and the bye-ftanders, were perfectly clear. They hardly 
feemed to think it a ferious queftion in this caufe. There 
is fcarcely now fuch a thing as a fhip entirely manned with 
feamen ftri<^ly fo called. Even on board the King's fhips, 
they are fatisfied with a few ftrift feamen, and able-bodied 
landmen make up the reft of the crew. I had no doubt of 
the fenfe of the word in this policy, and the jury decided it. 
With regard to the other queftion, it M'as ftated as a for- 
lorn hope; but certainly, when the aftion was brought, 
there was no profpecl of a recapture of the fhip 5 (lie was 
conftdered as totally loft in a remote part of the world. 
The report which afterwards prevailed of her being retaken, 
fome months after the capture, was loofc and general ;— 

(r) B, R. T. 1 G. 3. 2 Burr. 1 198. 





Under an 
agreeiDcnt to 
pcjfopm one 
of two things» 
the option is, 
in the (hsiibn 
who is to per- 
form.— If one 
6f the two 
things is pro- 
hibited under 
ti penalty, no 
aaion ^ill lie 
for the penal- 
ty, until the 
party makes' 
his eleflion by 
the prohibit- 
ed part of the 


no circuittftanccs known, no account of her fituation, hot 
of what part of the cargo might be faved. In (hort there 19 
no doubt, but that it was a cafe where the owner might 
abandon. The rule difcharged. 

L A Y T O N againß P E A R c £. 

BY the Lottery acl iSf 1777, (17 Geo\ 3: c. 46.) a 
penalty of 500/. was p^iven to be recovered in a qui 
tarn aftion againft any perfon — *' Who ßtould receive any 
** money luhatfoever in confideration of repayment of any f urn 
" or fums cf mouey^ in cafe any ticket or tickets in the faid 
" lottery fnould prove fortunate, ot in cafe of any chance or 
<* event relating to the dranving of any ticket or tickets in 
*' the faid lottery, cither as to the time of fuch ticket of 
" tickets being dr/tion^ or whether fuch ticket or tickets 
" fhould be drawn fortunate or unfortunate." — ^This was 
an aftion upon that ftatute, againft a lottery-oflBce keeper* 
The declaration contained three counts. — ^Thc firft flated 
that the defendant had received i /. 6 s. from one Robert 
Griffin^ in confideration of repaying the yalue of an un- 
drawn ticket, if the above number {hould be drawn on the 
enfuing day.— The fecond, that ha had for the like fum, 
and in the like events undertaken to deliver an undrawn 
ticket, — ^The third only differed from the firft, in ftating 
the ftipulation to have been to pay a precife fum (of 20 A) 
on the like event, and in following more accurately the 
words of the ftatute. — ^The agreement proved at the trial 
was in the alternative, v/a. that Griffin had paid to the de- 
fendant 1 L 6s, on condition that if the ticket No. 37,733^ 
in the lottery then drawing, (hould come up, either a 
blank or prize on the enfuing day, he (the defendant) would 
either deliver to Griffin an nndrawn ticket j or pay him 20 /. 
He had not in faft done the one thing or the other. The 
caufe was tried before Lord Mansfield, at Guildha/l, and, 
a verdiö having been found for the plaintiff, Dunning 
moved for a rule to fliew caufe why it (hould not be fet 
afide, and a nonfuit entered: — i. Becaufe the agreement 
proved, did hot correfpond with that ftated in any one of 
tlie three counts in the declaration :— 2. Becaufe the 
agreement as proved would not maintain the a£lion, for 
that, being optional, it was not within the provifions of the 

The rule was granted, and the Solicitor General^ and 
LanCf (hewed caufe. — ^They faid, that the plaintiff, by bring- 
ing tliis adion, had made his ele^ion [5], and had con-' 


[z] The plMHtiff here was a third 
perfon, and not the infured. Griffin 
indeed was the witnefs who proved the 
tranfadion at the trial» but it would 

have been aviolfcnt i^refumption indeed^ 
to have confidered that as a condru^ 
tive eledltion. 


verted the contraft into an abfolute agreement for the pay- 
ment of money. ^ _^ 

* Dutmingy and Davenport ^ on the other fide. — They ob- Layton 
ferved that this, being a penal ftatute, was ßr'iEli jurisy againft 
and that the plaintiff, by not ftating the contraft on the Pkarce. 
record exaftly as the izQt was, had deprived the defendant * [ i6 ] 
of the means of bringing its legality before another court 
by a writ of error. 

Upon a queftion from the 'court, the Solicitor General 
faid, that, by the general praöice, the option in fuch 
tranfaäions was in the infured» 

ITie court took feme days to confider. 

Lord Mansfield, — ^We arc of opinion that, if the 
option had been in the infured, and if he had made his 
cleöion to take the 20/. the contraft would have been 
fufEciently ilated, becaufe he would thereby have con- 
verted the agreement into an abfolute contraft for the pay- 
ment of money, and then the other part of the alter- 
native in the original bargain would becorne furplufage. In 
an zdion on the (latute of 2 Geo. 2. c. 24. againft bribery, 
the aft of bribery laid, was the corrupting a voter to give 
his vote for Mr. Lochyer and the Earl of Egmonty and the 
evidence was, that the contraft was to vote for Mr. Lochyer 
and his friend. The court held, that, by that part of the 
tranfaftion by which the voter was corrupted to vote for 
Mr. Lochyer^ the offence was compleat, and that the refl 
was furplufage, and needed not to be proved (/). But, 
though the praftice may be, that the infured fliall have the 
option, in point of law, the perfon who is to perform one 
of two things in the alternative has the right to eleft. 
This has been eftabliflied by a variety of cafes. The pre- 
fcnt aftion^ therefore, cannot be fupported [6]. 

Judgment of nonfuit. 

(j) Combe v. Pitt, M. 5 Geo, ^. B,R. mas Datrnfort, with which it exaflly 

3 Burr. 1586. But *viile Brifiotv v. corrcfponds. 

JVrigbt, infra, E. 21 Geo. 3. /. 640. [6] Part of Dufinijig^s rule was for a 

[l^] Churchill v. Wilkins, B. R. M. new trial, on the ground, that, accord- 

27 Geo. 3. 1 Term Rep. 447. On the ing to the weight of evidence given at 

argument of that cal'e at the bar, the Nifi Priuj, the office was not kept by 

accuracy of this report of Layton v« the defendant, but another perfon. 

Fsarct kerned to be quefUoned ; but. But the difcuffion of that part of the 

befides other proofs I could mention cafe became unnecefTary, by the opi- 

of its corre^efs, I have had an op- nion delivered by the court on the 

portanity of comparing it, with a note other point, 
sak^n at the time, by the lat« Sir Voq- 

Vol. I. 



If a ftiip in- 
Aired for one 
Toyagc, fails 
upon another, 
though (he be 
taken before 
the dividing 
point of the 
^wo voyages, 
the policy is 

*C 17 J 


^T^HE fhip Molly being infured '* At and from Maryland 
^ " to Cadizy' was taken in Che/apeak Bay^ in the way 
to Europe, Upon this, the infured brought this a£tion 
againft the * defendant, one of the underwriters on the po- 
licy. The trial came on at Guildhall^ before Lord Mans- 
field, when a verdift was found for the defendant, and, 
a new trial being moved for, the material fafts of the cafe 
appeared to be as follows: — ^The fhip was cleared from 
Maryland to Falmouth^ and a bond given that all the enu* 
merated goods were to be landed in Britain ; and all the 
other goods in the Britijb dominions. An afEdavit of the 
owner dated that the veflel was bound for Falmouth^ The 
bills of lading were ** to Falmouth and a Market J* And 
there was no evidence whatever that flie was dcftihed for 
Cadiz, The place where fhe was taken, was in the courfe 
from Maryland both to Cadiz and Falmouth^ before the > 
dividing point. Many circumftances led to a fufpicion that 
file was, in truth, neither defigned for Falmouth nor Cadizy 
but for the port of Boßon, to fupply the American army ;, 
but there was not fufEcient direö evidence of that fa£l.— 
At the trial, Lord Mansfield told the jury, that if they 
thought the voyage intended was to Cadiz^ they muft find 
for the plaintiff. — If, on the contrary, they fliould think 
there was no defign of going to Cadiz, they muft find for 
the defendant. 

The Solicitor General^ Dunning, and Davenport, argued 
for the new trial.^ — ^They contended that this was like the 
cafes of an intention to deviate where the capture had- 
taken place before the deviation was carried into execution ;. 
and they cited, F'ojler v. IVilmer (/), Carter v. The Royal 
Exchange AJfttrance Company, cited in Fofler v. Wilmer, and 
Rogers v. Rogers, a very late cafe in this court. — ^They, 
befuies, urged, that, by " a Market'* in the bills of lading, 
and in the inftruftions to the broker (where that expreflion 
was ufed, but which I believe had not been read at the 
trial), was meant Cadiz, — And that " to Falmouth and a 
Market" might be confidercd as meaning to the market at 
Cadiz, firft touching at Feilmouth, — (It appeared in evidence 
at the trial, that the premium to infure a voyage from 
Maryland to Falmouth, and from tlience to Cadiz, would- 
have exceeded greatly what was paid in this cafe.) 

Lee, and Baldwin, fliewed caufe. — ^Tliey argued, that 
here there had been no inception of the voyage infured, 
and therefore the cafe was very difiercnt from thofc cite* 
by the counfel for the plaintiff. 

(/) /f. 19 G. 2. 2 Strange 1249« 



Lord Mansfield, — ^Thc policy, on the faceof it, is from i 'yyS. 
Mary/and to CadtZj and therefore purports to be direft a- \ , j 
voyage to ^ Cadi%. Ail contrafts of infurance mull be Wool- 
founded in truth, and the policies framed accordingly. dridcb 
When the infured intends a deviation from the direft voy- againft 
age, it is always provided for, and the indemnification Boy dell. 
adapted to it. There never was^a man fo foolifh as to in- * C ^^ 3 
tend a deviation from the voyage defcribed, when the in- 
furance is made, becaufe that would be paying without an 
indemnification. Deviations from the voyage infured, arife 
from after-thoughts, after-intereft, after-temptation 5 and 
the party who aäually deviates from the voyage defcribed, 
means to give up his policy. But a deviation merely in- 
tended, but never carried into effeft, is as no deviation. 
In all the cafes of that fort, the terminus a quoy and ad 
ijuetn;^ were certain and the fame Here, was the voyage 
ever intended for Cadiz ? There is not fufficient evidence 
of the defign to go to Boßon^ for the court to go upon. 
But fome of the papers fay to Falmouth and a Market, fome 
to Falmouth only. None mention Cadiz^ nor was there 
any perfon in the fhip, who ever heard of any intention to 
go to that port. ** Ä markef* is not fynonymous to " Ca* 
** diz^" that expreffion might have meant Leghorn, Na* 
ples^ England, toV. No man, upon the inftruftions, would 
have thought of getting the policy filled up to Cadiz. In 
fliort, that was never the voyage intended, and confe- 
quently is not what the underwriters meant to infure. 

WiLLEs, and Ashhurst, Jußices, of the fame opinion. 

BuLLER, Jußice, — I am of the fame opinion. I believe 
the law to be according to the authorities mentioned on the 
part of the plamtifF, but it does not apply here. This is a 
queftion of faä. There cannot be a deviation from what 
never exiiled. The weight of evidence is, that the voyage 
m'as never defigned for Cadiz, 

The rule difcharged. 

Stuart againß Wilkins. 

THE two firft counts in the declaration in this cafe Aflumpfit Is a 

were as follows : — " David Stuart complains of PJ^Pi*". ^^^^^ 

James Wilkins being, faTr. For that whereas the faid ^^^^^^X^c 

2'ames, on the firft day of February, in the year of our has been an 
ord 1778, at Hatfield, in tlie county of Hertford, offered cxprefi war- 
to fell to the {zid. David, a certain. mare of him the faid ^»"7« 
James, and whereupon afterwards, to wit, on the day and 
tear aforefaid, at Hatßeld aforefaid, in the county afore- 
C a foid, 


lyyg. faid, in confideration that the faid David, at the fpeciil 
1^ ^ - J inftance and requeft of the faid Jatnes, would buy of 
Stuart ^"i the faid Jainesy the faid mare, at and for a certain 
againit largp price or fum, to wit, the price or fum of 31 /. 10/. 
WiLKiKS. of lawful money of Great Britain, tobe paid by the faid 
David, to the faid James, when he the faid David fliould 
be thereunto afterwards requefted \ he the faid James //w- 
dertook, and then and there faithfully promifed the faid Da* 
vid, that the faid mare was found, and the faid David in faft 
faith, that he, confiding in the faid promife and undertak- 
ing of the faid James, fo by him made as aforefaid, af- 
terwards, to wit, on the fame day and year aforefaid, at 
Hatfield aforefaid, in the county aforefaid, at the fpecial in- 
ftance and requeft of the faid James, did buy of the faid 
James the faid mare, at and for the faid price or fum of 
31 /. 10/. and did then and there pay to the faid James the 
fum of 25 /. 5 /. part of the faid fum of 31 /. 10 s. and 
did then and there undertake and faithfully promife the 
faid James to pay him the further fum of 6 /. 5 /. rcfiduc 
of the faid fum of 3 1 /. 10/. when he the faid David 
ftiould be thereunto afterwards requefted. Yet the faid 
James, not regarding his faid promife and undertaking fo 
by him made as aforefaid, but contriving, and fraudulently 
intending to injure the faid David in this behalf, did not 
regard his faid promife and undertaking fo by him made as 
aforefaid, but craftily and fubtilly deceived the faid David 
in this, that the faid mare, at the time of the making the 
faid promife and undertaking of the faid James, was not 
found, but, on the contrary thereof, was unfound, and 
was afflidled with a certain malady or difeafe, called the 
windgalls, to wit, at Hatfield aforefaid, in the county 
aforefaid ; whereby the faid mare then and there became, 
and is of no ufe or value to the faid David. — And whereas 
alfo the faid James, afterwards, to wit, the fame day 
and year aforefaid, at Hatfield aforefaid, in the county 
aforefaid, in confideration that the faid David, at the like 
inftance and requeft of the faid James, bought of him 
the faid James, a certain other mare of him the faid 
James, at and for a certain other large, price or fum, 
to wit, the fum of 31 /. 10 /. of like lawful money, and 
had then and there paid to the faid James, the fum of 25 A 
5 J. in part of the faid laft mentioned fum of 31 /. 10/. 
and had then and there undertaken and promifed to pay to 
the faid James the further fum of 6 L 5 /. refidue of the 
faid laft mentioned fum of 3I/. 10/. when he the faid 
David fliould be thereunto afterwards requefted, be the 
faid James undertook, and then and there faithfully promifed' 
him the faid David, that the faid laft mentioned mare 'was 
found* — Yet the faid James, not regarding his faid laft 

7 mentioned 


mentioned promife and undertaking fo by him made as 

lad aforefaid, but contriving and fraudulently intending _ ^ 

to injure the faid David in this behalf, did not regard his ütuart 

f^id promife and undertaking fo by him made as lalt afore- againll 

faid, but craftily and fubtilly deceived the faid David in Wiliiks» 

this, that the faid laft mentioned mare, at the time of the 

making tlie faid laft mentioned promife and undertaking of 

tJie faid Janm^ was not found, but then was unfound, 

whereby the faid laft mentioned mare became, and is of no 

ufe or value to the faid jy^v/V/."^— To thefe were added a 

count for money laid out and expended, and another for 

money had and received, — The caufe was tried at the af- 

fizes at Hertfordy before Lord Mansfield, and a verdift 

found for the plaintiflFj but the evidence given being of an 

tpcprefs warranty, and a doubt being raifed, whether, \\\ 

fuch a cafe, this was a proper form of aäion, the vcrdifl: 

was taken fubjecl tg the opinion of the court on that 


Upon the motion for fetting afide the verdift, and en- 
tering a nonfuit. Lord Mansfield faid, that it had been 
fuggefted, that the form of this declaration arofe from ^ 
determination of his at the fame place about twenty years 
ago, but that, he faid, was a cafe of a clear fraud, and 
was declared on as a fraud« 

Caufe was now (hewn againft making the rule abfolute. 

Kempey Serjeant, and Morgan ^ for the defendant, con- 
tended, that there arc two forts of warranty, i, exprefs, 
jj- implied. — ^That, in an exprefs warranty, the party is 
liable without alleging notice ; but that it muft be laid 
warrantizando vendidit. — ^That every promife is executory, 
and refers to fomething to be done in future, whereas tne 
declaration here charged the defendant with promifing a 
thing paft. They cited Finch. i8o. Dyer. TS> pi» 23. Bro, 
Abr^ Tit, Aclionfur le cafe^ pL 8. Keihvay^ 91. 2 Ld. Ray 
$nondy 1 118. Hernias Pleader 7, 77, 223. Raßelly 9. i Ventr* 
365. Alleyne 91. Salk. 210. Fitz. N. Br. 98. a. 

Lord Mansfield, — ^The declaration ftruck me as parti-« 
cular, in departing from die old rule of declaring exprefsly 
on the warranty. A warranty extends to all faults knowi^ 
and unknown to the feller. Selling for a found price with« 
out warranty may be a ground for an aßonpjßtj but, in 
fuch a cafe, it ought to be Igid that the dc^ndant knew of 
the unfoundnefs. I left it to the jury as on a warranty» 
fubje^l to the opinion of the court, whether a nonfuit 
ihould not b^ entered. I am told by the learned Judges [ 21 ] 
on my left hand (Ashhurst, and Buller, Jtiflicesy) that 
this fort of declaration, where a warranty is to be proved, 
^as been pra£tifed for twenty years, and that it is made ufc 
pf with 9 view to let in both proofs, if ncccflary. 




1778. AsHHURST, y«/?/V^,— Whatever may have been the old 

. ' _* , form, I believe it has been long fettled that this form 

Stuart of a<äion is right; and, having been long eftablifhed, I 

againft am of opinion that it ought to be fupported. There may 

WiLKiNS. be cafes where the count for money had and received may 

be of ufe to the plaintiff, and the warranty including a 

promife, may be declared on as fuch. 

BuLLER, Jußicey — ^This mode Jias been in ufe ever fnice 
I have known any thing of praftice, and my brother Ash-. 
HURST remembers it much longer. There is no objec- 
tion to it, in point of form, M'hich could prevail even 
on a fpecial demurrer. Promifes are not all executory. 
Do not all our books make a diftinftion between pro- 
mifes executed, and promifes executory, — that in one 
you may traverfe the confidcration, in the other not ? Be- 
* caufe another aftion would lie, it does not follow that this 
will not. It was determined in Slade's cafe, that there 
may be different anions for the fame injury («). 

The rule difcharged, 

(tf) T. 44 Eliz, 4 Co. 92. ^. 

Mon<iay»i6th Keech, Leflec of Warne, aga^n/lHALL and 



A mortgagee 
may lecovcr 
in cje^lment 
(without giv- 
ing notice to 
quit) againft 
a tenant who 
claims under 
a leafe from 
the mortga- 
gor granted 
after the 
without the 
privity of the 

pJECTMENT tried at Guildhall, before Buller, Juf 
*-^ ttce, and verdift for the plaintiff. After a motion for 
a new trial,- or leave to enter up judgment of nonfuit, and 
caufe (hewn, the court took time to confider ; and, now. 
Lord Mansfield dated the cafe, and gave the opinion of 
the court, as follows. 

Lord Mansfield, — ^This is an ejeftment brought for a 
warehoufe in the city, by a mortgagee, againft a leflee under 
a leafe in writing for feven years, made after the date of 
the mortgage, by the mortgagor, who had continued in 
poffefTion. The leafe was at a rack-rent. The mort- 
gagee had no notice of the leafe, nor the leflee any notice 
of the mortgage. The defendant offered to attorn to the 
mortgagee before the ejeöment was brought. The plain- 
tiff is willing to fuffcr the defendant to redeem. There 
v/as no notice to quit ; fo that though the written leafe 
ftould be bad, if the Icffee is to be confidered as tenant 
from year to year, the plaintiff muft fail in this aftion. 
The queftion, therefore, for the court to decide, is, whe- 
ther, by the agreement undcrftood between mortgagors 

[1^] But if there is tenant from 
year to year, and the landlord mort- 
gages^ pending the year, the tenant 

is entitled to 6 months* notice from 
the mortgagee. Birch v. Wright, 378, 



and mortgagees, which is, that the latter (hall receive in- j 778« 
tereft, and the former keep pofleflion, the mortgagee has ^ _^ _ _f 
given an implied authority to the mortgagor to let from Keeck 
year to year, at a rack-rent ; or whether he may not againd 
treat the defendant as a trefpaffer, düTeifor, and wrong- M^ll. 
doer. No cafe has been cited, where this queftion has 
been agitated, much lefs decided. The only cafe at all 
iike the prefcnt, is one that was tried before mc on the 
home circuit (Belebter v. Collins) ; but, there, the mort- 
gagee was privy to the Icafc, and, afterwards, by a 
knavifh trick, wanted to turn the tenant out^ I do not 
wonder that fuch a cafe has not occurred before. Where 
the leafe is not a beneficial leafe, it is for the intereft of 
the mortgagee to continue the tenant ; and where it is, 
the tenant may put himfelf in the place of the mort- 
gagor, and either redeem himfelf, or get a friend to do it. 
The idea that the queftion may be more proper for a 
court of equity, goes upon a miftake. It emphatically 
belongs to a court of law, in oppofition to a court of 
equity ; for a Icflce at a rack-rent, is a purchafor for a 
valuable confideration, and in every cafe between purchafors 
for a valuable confideration, a court of equity mu^ follow not 
iead the law. On full confideration, we are all clearly of 
opinion, that there is no inference of fraud or confent 
againft the mortgagee, to prevent him from con fidering 
the leflee as a vjrrong-doer. It is rightly admitted that if 
the mortgagee had encouraged the tenant to lay out mo- 
ney, he could not maintain this a<äion [f 8]; but here 
the queftion turns upon the agreement between the mort- 
gagor and mortgagee : when the mortgagor is left in pof- 
Jeffion, the true inference to be drawn, is an agreement 
that he (hall poflefs the premifes at will in the ftridleft 
fenfe, and therefore no notice is ever given him to quit, 
and he is not even entitled to reap the crop, as other te-. 
Tiants at will are, becaufe all is liable to the debt \ on pay-* 
ment of which, the mortgagee's title ceafes [f 9]. The 
mortgagor has no power, exprefs or implied, to let leafes, 
not fubje£i to every circumftance of the mortgage. If 
by implication, the mortgagor had fuch a power, it muft 
go to a great extent ; — to leafes where a fine is taken on 
ä renewal for lives. The tenant ftands exaftly in the 
fituation of the mortgagor. The pofl^eflSon of the mort- 
gagor cannot be confidered as holding out a falfc appear- 
ance. It does not induce a belief, that there is no mort- 
gage; for it is the nature of the tranfaftion, that the 
mortgagor fliall continue in pofleffion. Whoever wants t 23 ] 
to be fecure, when he takes a leafe, fhould inquire after 

[t 81 VUe Weakly, Leße of Yea, v. [f 9] Infra, M^fs v. Galltmore, M. 
Bucknell, B. S,. M. xj Geo. 3. Co^f. 20 Geo. 3./. 266, iföj. 

V 4 ^^ 


1778. *"^ examine the title deeds. In praftice indeed (efpecially 
. _ _ * 1 in the cafe of great eftates) that is not often done, becaufc 
Xeach ^^^ tenant relics on the honour of his landlord 5 but when- 
»qainft ever one of two innocent pcrfons muft be a iofer, the rule 
H.vLL. is, qui prior eß tempore ^ potior eß jure^ If one muft fufFer, 
it is he who has not ufed due diligence in looking into the ' 
title. It was faid at the bar, that if the plaintiff, in a 
cafe like this, can recover, he will alfo be entitled to the 
mefne profits from the tenant, in an aöion of trefpafs, 
which would be a manifeft hardfliip and nijuftice, as the 
tenant would tlien pay the rent twice. I give no opinion 
on that point ; but there may be a diftinftion, for the 
mortgagor may be confidered as receiving the rents in order 
to pay the intereil, by an implied authority from the 
mortgagee, till he determine his will [f 10]. As to the 
leffce's right to reap the crop which he may have fown pre- 
vious to the determination of the will 01 the mortgagee, 
that point does not arife in this cafe, the ejeftment being 
for a warehoufe ; but, however that may be, it could be 
no bar to the mortgagee's recovering in ejeöment. It 
would only give the leflee a right of ingrefs and egrefs to 
take the crop -, as to which, with regard to tenants at will, 
the text of Littleton is clear. We arc all clearly of opinion 
that the plaintiff is entitled to judgment [7]. 

The Solicitor General for the defendant. — Dunning^ and 
Cowper^ for the plaintiff. 

The rule difchargcd^ 

Mmiday. i6ih Weston againß Downes. 

Afrumpfit, for nrHIS was an aftion for money had and received by the 
money had -■' defendant to the ufe of the plaintiff. On the trial, 
and received, before Lord Mansfield, the plaintiff proved, that the de- 
when *the pay- ^«^^idant, in confideration of fevcnty guineas, had fold him 
nient hat btcn made on a contrail vehich is (UU open, and not given up by the defendant. 

[f 10] It is cxprcfsly provided by at the bar. Lord Mans/ielJ {sLid, he cn- 

4 Jnn, r. 16. § 10. ** That no tenant tircly approved of what had been done 

«' (hall be prejudiced or damaged by b^ Nares, Jufticc, upon the Oxford 

•* payment of any rent to a conufor or circuit, and aftcrwarcfs confirmed by 

•* grantor of any manors or rents, or this court, in the cafe of fFkite, lejfee of 

** of the revcrfion or reminder of any Wbatlty, v. Hawkins^ viz, not to fuffcr 

** mcfTuages or lands, or by breach of a leircc under a \ez{e prior to the mort- 

«' any condition for non-payment of gage to avail himfelt of fuch leafe on 

«* rent, before notice fhall be given to an cjcdtmcnt by the mortgagee, if 

** him of the grant by the conufee or he has had notice before the adion, 

•• grantee." that the mortgagee did not intend 

[7J When the qaeftion was argued to turn him out of poffcflion [t ' *]• 

[t 1 1] liaw of Ni. Pr, Ed. of 1775, p. 96. 

a pair 


a pair of coach horfes, which he undertook to take back, 
if the plaintifF fhould difapprove of them, and return ^ _ 

them within a month. The plaintifF did return them Westch 
within a month, but took another pair from the defend- againll 
ant in their ftead, without making any new agreement. Down es. 
Thefc he alfo returned within a month, and received a 
third pair on the 23d of Decetnbery without any frefh bar- 
gain. This third pair he difapproved of, becaufe they 
were reftive, and would not draw ; and offered to re- 
turn them on the 5th of January^ but the defendant re- 
fufed to take them back. 

Lord Mansfield directed a nonfuit ; and, on a rule 
to ihew caufe why the nonfuit fhould not be fet afide, 
and a new trial granted, the queftion was, whether the 
adion of ajfum^tt for money had and received, would 
lie in this cafe. 

Dunning and Davenport^ for the plaintifF, contended, 
that there was an end of the contraft on the return of the 
firft pair of horfes, and that then a right accrued to bring 
this aäjon. 

The Solicitor Genera!^ for the defendant, infifted, that 
the contraft was continued by taking other horfes, and 
that the plaintiff ought to have declared upon the fpccial 

Lord Mansfield, — I am a great friend to the aftion for 
money had and received ; and therefore I am not for 
ftretcning, left I fliould endanger it [f 1 2]. Where there 
is a fpecial contrad, the defendant ought to have notice, 
by the declaration, that he Is fucd upon that con- 
traa [(Ö- 1]. 

WiLLEs, Jußicej of the fame opinion. — Here was ori- 
ginally a fpecial contraä, and it continued between the 
parties through all their fubfequent dealings. 

AsHHURST, Jtißicey — If the plaintiff' had demanded the 
feventy guineas, and brought his a£lion, on the return of 
the firft pair of horfes, and no fecond pair had been fent, 
this a£lion would have lain [(0" 2] ; but, here, the con^ 
traä was continued, and the cafe refembles one that was 
tried before me on the Midland Circuit, and afterwards 
came on in this courts viz. Power v. Wells^ JE. 18 
Geo. 3. [8]. 


[t 12] Infra f Longchamp v. Kenny ^ the plaintifF gave a horfe of his own' 

J?. 190^0.3. p. 1^ 13^. and twenty guineas for a horfe of the 

[1^ l] Vide Fielder v. Starkin, defendant's» which was warranted found» 

(^, B. T, 28 Geo. 3. H, BL 17. but proved to be unfound; upon whicl^ 

[l3» 2] Toiversr. Barrett, B.R.H. the plaindfF, after tendering a return 

26 Geo. 3. 1 Term Rep. 133. as above mentioned» brought the ac» 

[8] In the caie of Po<iver v* IfVls, tion for money had and received for 



again (I 


*12S ] 


BuLLER, Jujticey — ^This aöion will not lie, as the dc-; 
fendant has not precluded himfelf from entering into the 
nature of * the contraft, by taking back the lafl pair of 
horfes. Where the contraft is open, it muft be ftated 
fpecially. In Power v. Wells^ the defendant had warrant- 
ed a horfe to be found, which proved unfound. The 
plaintiff tendered a return of the horfe, but the defendant 
rcf^fed to receive him •, and an aftion for money had and 
received being brought> it was held by the court, that it 
would not lie. 

The rule made abfolutc. 


^9th Nqy« 

|loE, Leflee pf Roach, Widow, ßgawß Pop- 
ham and Others. 

\i a fine i^ le- 
vied bv tenant 
for lite, re- 
in tail, and 
reverfioncr in 
fee, a declara- 
tion of ufes by 
the tenant for 
life and re- 
mainder man 
in tail, does 
not bind the 
vrithout his 
When no ufes 
are declared, 
parol evidence 
may rebut the 
refulting ufe 
Co the conufor 
in favour of 
the conufee, 
without any 
written decla- 
ration of the 
tiles in his fa- 

"D Y marriage-articles, bearing date the 28th of February y 
^ I734> LaUtia Hnrr'u^ and i^£^Ä/v;«ö her daughter, the 
one being tenant for life, and the other entitled tp a re- 
mainder in tail, of a truft eftate, in contemplation of 
a marriage about to be celebrated between Poßbuma 
Harris and William Taylor j co\'cnanted to levy a fine, and 
to fettle the lands in quef^ion pr^ truflees, in ftrid fettle- 
ment, with a remainder in fee to Foßhuma. The legal 
cftatc of the whole, and the equitable eftate in the rever- 
iion in fee, expeftant on Pofihuma's eftate tail, had de- 
fccnded to Thomas Harris^ eldeft fon of Latttia^ huftjand 
by a former wife. He was not a party to the articles of 
1734. But, in 1735, a fine was levied, in which William 
Taylor, Thomas Harris, Latitia and PofthfurM, were conu- 
fors", and the truftees in the marriage-fettlement conufees. 
Thomas Harris died without iflue, in 1736, without hav- 
ing joined in any declaration of the ufe§ of tlie fine, and 
was fucceeded by his full fifter Elizabeth, xht leflbr of the 

ElaintifF, who was his heir at law, and the heir at law of 
er father as to the reverfion. Poflhuma had two daugh- 
ters, but (he died in 1739; one of her daughters in the 
fame year, and the other in 1 740, both without iffue ; 
and Latitia died in 1771. This ejeftment was now. 
brought by Elizabeth againft the truftees, on the ground 
that the declaration of ufes in the marriage-articles did not 
operate againft Thomas Harris, he not being a party • to 
them ; and that where there is no declaration of the* ufes 
of a fine (which by the ftatute of frauds Y'v^ muft be ia 

the twenty guineas, and alfo an aäion 
i^{ tronjer for his own horfe. The 
court held, that neither would lie. Not 

the latter adUon, bccaufe the property 
had been changed [f 13]. 
C'u) 29 Car, 2. f. 3. § 7, 

[t 13] Since reported, Co^p. 81 3, 



ynriring) they rcfult to the conufors. Buller, Jußicey 1778. 
Jjeiforc whom the caufe was tried, at the laft fummei* 
afUzes for Someffetjbirej being of that opinion, * direfted a 
yerdift to be found for .the plaintiff, but with leave to 
move for a new trial without payment of cofts. 

At the trial, the counfel for the leflbr of the plaintiff had 
objeÄed to the reading of the marriage-articles, becaufc 
the reverfioner, under whom (he claimed, was not a party 
to them, and there was no evidence of his knowing thsi 
there were fuch articles : but tlje judge over-ruled this ob-* 
je£^ion, as they made a necjeffary part of the defendant's 
title, and it was clear, that it was no objeftion againft 
reading a title-deed, that the perfoh againft whom it was 
produced, was not a party to it. 

' Morris now contended, for the defendant, that the 
claufe in the ftatute of frauds, requiring that declarations 
of trufts and confidences (and which is held to include 
yfes,) fliould be made by fome writing figned by the party^i' 
extends, in the cafe of fines, to third perfons only, and not 
to the conufors and conufees pf the fine. That the refult« 
ing ufe to the conufors may be rebutted in favour of the 
conufees, by parol evidence, Ihewmg fuch to have been 
the intention of the parties* That thi^ do£lrine. is fully 
eftabliihed by the cafe of Lord Altham v. the Earl of Angk-^^ 
Jea (wj. That it being a mere queftion of fa£l and in- 
tention, in whom the ufes of the fine in the prefent cafe 
vefted, that queftion ought to have been left to the jury, 
and that there could be no purpofe imagined for levying 
the fine, and making the truftees conufees, except to con- 
firm the marriage-articles. 

Gould for the plaintiff.— He cited Beckwth's Cafe (x). 

Lord Mansfield,— The cafe cited by Mr. Morris is 
good law. There, there was evidence to rebut the refult- 
ing ufe ; but here I fee no proof of intention on the part 
of the reverfioner in fee. He was not a party to the mar- 
riage'^rticles. If he had been, that would have been 
ftrong evidence againft any refulting ufe to him. The 
firm of a fine is to give a title to the conufee ; but, in 
•truth, it is for the convenience of the conufor ; and, from 
the conilant ufage, the prefumption is, that it is levied to 
his ufe* This indeed is liable, like all other prefumptions, 
to be eticountiered by contrary evidence ; but here the re- 
verfioner in fee has done nothing to rebut the prefump- 

The rule difcharged. 

C'w) E. 8 J/tß. GJli, Sgf. 1 6. CxJ 2 Co. 58. ^. 


27th of Nov« 

Op a difTolu« 
tt4n of a 
partiier(hip, by 
a covenant that 
the plaintiff 
ihali have the 
moieiy of 
goodk in a 
vrhich is to be 
the defend- 
ant*», the de- 
fendant is not 
bounil tu de- 
liver the 


Stevens againß Carrington. 

N an aclion of debt, upon a bond, conditioned for tlic 
performance of the covenants in a deed to dinr)!ve a 
partnerfhip between tlie plaintiff and the dcfendnit as 
.wharfingers, the defendant having prayed oyer of the 
condition, orte of the covenants appeared to be, \n cf- 
fe£l, " That the faid parties agreed with each other, 
•« that the goods and merchandifes which fl\ould be 
" lying upon rent, on all, or any part of the partncr- 
•* fliip premifcs at the time of the diffolution of the part- 
" ncrfhip, ftiould be divided equally between them *, and 
«* that each fhoufd bear and jmy a moiety of the charges 
" and expences attending the weighing and dividing the 
" fame •, but that the plaintiff Ihould folcly bear and pay 
« the charges and expences attending the conveying his 
** moiety from a warehoufe agreed to be affigncd to the 
«< defendant, to another warehoufe agreed to be affigned 
** to the plaintiff." — He then pleaded performance of all 
the covenants. — The plaintiff replied, that he had per- 
formed, or was willing to perform, his part of the above-r 
mentioned covenant, and that although he had required 
the defendant to deliver to him his faid moiety of the 
goods and merchandife, tffr. yet the defendant did not> 
nor would deliver, or caufe to be delivered, to the plain- 
tiff his faid moiety, but wholly refufed^ l^c. — To this re-. 
plication the defendant demurred generally. 

Baldwin i in fupport of the demurrer, infilled, that, in 
aflions founded on covenants, tlie words mud be ftriclly 
followed \ that there was, in this cafe, no ftipulation to 
deliver the goods. That the defendant did not mean to 
put himfelf to the expence of the delivery ; that, being a 
wharfinger, it might not be in his power to deliver them, 
becaufe fome other perfon or perfons might have a con- 
trol over them. 

Runnington^ for the plaintiff, admitted, that there was 
no cxprefs covenant to deliver ; but contended, that fuch 
a covenant arofe by neceffary implication of law, from 
the words of the deed. The plaintiff, he faid, could not 
enter the warehoufe in which the goods were, without the 
confent of the defendant ; it being affigned to him. He 
cited Rohinfon v. Amps or Aunts (yj^ and Hill v. 
Carr (z). 

Lord Mansfield told Baldwin^ he had no occafion to 
reply; and faid, that the defendant, by this covenant. 

(yj Sir 7h. Rajm, 25. 1 Sid. 48. 

(zj Chancery Ca/rs, 294. 



mas not bound to^ deliver; though if he had obftrufted 1 778. 
the plaintiff in removing the goods, it would have been y_ * j 

a breach of the covenant. Stevens 

Rtmmngton moved for leave to amend, which was again ft 
granted* Car ring- 


The Eariof AiLESBURY againß Patti^on. 

xoth of Nor. 

'T^HfS was an aftion of debt agaiiift the defendant, 
'* to recover fix penalties, on the ftatute of Autu r. 
14. for keeping a gun to dcllroy game ; for ufuig a gun 
ibr that purpofc ; for keeping a fettiwg dog ; for ufmg a 
fetting dog ; for expofing a groufe to lale j and for ex- 
pofiug a partridge to fale \ not being qualified. The caufe 
was tried, at the laft alTizes at York^ before Willes, 
Jußice^ and a verdi£l found for the plaintiff on one of 
tiie counts, fubjeft to the opinion of the court, on the 
following cafe, v/z. " That H^ilUam Marwoody Efq. was 
lord and chief bailiff of tlic liberty, wapentake, or hun- 
dred, of Langbaurghy in the North Riding of tlic county 
of Tork. That the faid William Mar wood and his fer- 
vants, and the fervants of thofe under whom he claimed, 
had ufed to kill game on the manor of Whorleion^ which 
is within the faid wapentake, and aPfo on all the reft of 
the faid wapentake. That the plaintiff was lord of the 
faid manor of Whorleion^ and had ufually appointed a 
game-keeper within the faid manor, for the purpofc of 
prefcrving the game, and had a game-keeper at the time 
of the faäs committed as laid in the declaration. That the 
faid William ALirwoody as lord and chief bailiff of the faid 
wapentake, on the 2 ill day of July 1777, granted a de- 
putation to the defendant (his menial fer^^ant), who was 
killing game at the time in the declaration mentioned, and 
did kill one groufe within the faid manor of Whorleton 
for the faid IVilliam Marwood^ by his order, and for his 
immediate ufe; which deputation was in the words fol- 
lowing, v/2.— " I William Alariuood, Efq. lord and chief 
bailiff of the liberty, wapentake, or hundred of Lang* 
baurghy in the North Riding of the county of Torkj io 
hereby nominate, authorize, and appoint, my fcrvant 
Michofl PattifoUy to be my game-keeper of and within my 
faid liberty, wapentake, or hundred of Langhaurghy during 
my pleafure only, with full power, licence, and authority, 
to kiii any hare, phcafant, partridge, or any other game 
whatfoever, in and upon all and every or any part of my 
faid liberty, wapentake, or hundred, of Langbaurgh^ for 


A lord of a 
hundiTd, or 
cannot grant 
a deputation 
to a game* 


my folc and immediate ufe and benefit, and^ alfo, to 

take and fcizc all fuch guns, bows, greyhounds^ fctting 

The Karl of dogs, lurchers^ or other dogs intended for killing of 

AiLESBURY hares, ferrets, tramels, lowbclls, hays, or other nets, 

againd harepipes, fnares, or other engines intended for the tak- 

PXttison. jng and killing of conies, hares, pheafantsy partridges, or 

other game, as within the precinfts of my faid liberty^ 

wapentake, or hundred of Langbaurghy (hall be ufed by 

any perfon or pcrfonsj who^ by law, are prohibited to keep 

or ufe the fame. Given undet my hand and feal this 2 1 ft 

day of Julyy 1777: — ^^fhat the faid deputation was duly 

regiftered with the clerk of the peace. That the faid Wil^ 

liam Mar<vood had granted no deputation before that given 

to the defendant." 

The queftion for the opinion of thft court, upon 
the foregoing cafe, was, " Whether the defendant had 
any right or authority to kill game upon the manor of 

Davenport^ for the plaintiff, befides drawing many ar- 
guments from the nature of wapentakes and hundreds^ 
and the ancient ftatutes concerning them, contended, that 
the ftatutes authorizing the appointment of game-*ecpers, 
do not extend to the lords of a wapentake or hundred. 
That the words of 22 Iff 23 Car. 2. c. 25. are, " That 
all lords of manors or other royaltiesy not under the degree 
of an efquire, may, by writing under their hands and 
leals, authorife one or more game-keeper or game-keepers 
l^ithin their rcfpeßive manors or royalties'^ [a). That it 
then gives the game-keepers, fo appointed, authority to 
feize fuch guns, bows, isfc. as, within the precinfts of 
fuch refpcElive manors ^ ftiall be ufed by perfons not qualified; 
That the word " royalty" was not repeated in the laft 
part of the claufe, which fhewed that it was ufed as fy- 
nonimous to manor. That, by the ftatutes of 5 Ann. c, 14; 
g Ann. r. 25. and 3 Geo. \. e. 11. which »fe the words 
" lords and ladies of manors," without any other defcrip-« 
tJön, it was manifeft that they only were meant by the legi- 
(lature to have the power of granting deputations. That 
honours, baronies, feigniories, and fees, are words ap- 
plied, in different parts of England^ to the fame fort of 
property as manors, one of them generally comprehending 
fcveral or many manors. But that the lord of a wapen- 
take or hundred- was to be confidered only as lord of 
Ae hundred court, or court-leet. That it would not be 
argued that a Iheriff could grant fuch a deputation for 
his county •, and, if not, how could a lord of a hundred 
^ wapentake, which is only part of the county, and 

(a) § 2. 



taken out of it ? That if this deputation were fuftained, 
there would be two game-keepers in the fame manor; 
for that Lord Aile/bury had appointed one, which he cer- 
tainly had a right to do ; but that, by 9 Ann. c. 1^. only 
one game-keeper could be appointed within any one ma- 
nor. That as to the ufage ftated in the cafe, that might 
be evidence of a prefcriptive free warren, fo as to excufe a 
trefpafe, but it could not enable Mr. Marwood to depute 
another to kill game. 

Chamhre^ for the defendant, argued, that the queftiori 
depended upon the conftruftion of 22 ÖJ" 23 Car, 2w 
€n 25. and of 5 Ann. c. 14. That all wapentakes were 
originally in the crown, and muft be derived from it, 
and that courts are incident to them, as to manors. 2 Rolh 
Abr. 73. That they thercfoire are properly royalties, and 
that, in the ftatute of 14 Ed. 3. c. 39. the owijers of wa- 
pentakes are called lords ; fo that Mr. Marn.BQod was rightly 
ftyled the lord of this wapentake. That Davenport had 
faid, that <* royalty** in the ftatute of Car. 2. was fyno-* 
nimous to ** maAor," but that the words were ** manors, or 
ether ropltics.** That nothing could be inferred from the 
omiflion of the word •< royalty" in the ftatute of 5 Ann. 
That aäs i» part materia are to be explained by one ano- 
ther, and that ^6t muft be underftood to extend to all 
who are entitled to appoint game-keepers by the ftatute of 
Car. 2. 

Lord Mansfield, — All aös in pari materia are to be 
taken together, as if they were one law. lu the ftatute of 
Car. 2. the words, ** other royalties,'* are ufed, hut that 
muft mean royalties of the fame nature with manors. If 
Toyakies of a higher nature had been meant, the ftatute 
would have begun with them. The reafon why this word 
was ufed in the zSt of Car. 2. was, becaufe fuch royalties 
go by different names in different parts of the kingdom j 
as honours, baronies, fees, (5*r. But in the zQ of 5 Ann^ 
r. 14. the words are only *' lordftiip or manor" {^), and 
the a£b of 9 Ann. and 3 Geo. i. recite the others, and only 
mention << lords and ladies of manors." 

The po/lea to be delivered to tlic plaintiff* 



The Earl of 






aoth of Nov« 

Brady, Leflee of Norris, againß Cubitt* 

An implied 
revocation of 
a will by a 
marriage^ and 
the birth of a 
child, may be 
rebutted by 
parol evi- 
dence. — If a 
will i» revok- 
ed by implica- 
tion, a refer- 
ence to it, in 
an inftrument 
attefted accord- 
ing to 19 Car» 
a. c. 3. 
anion nt8 to a 

tN an aftion of cjeament, tried on the laft Norfolk 
^ circuit, the yiry found a fpecial vcrdi£l to the following 
cfFeö, viz. " That John Norris* wzs feifed in fee, inter 
aliay of the premifes in tlie declaration mentioned. — 
That, on the 26th of June 1770, (being then a widower 
without children, and his fifter jlnne Ai^rere^ wife of An-- 
thony Aufrere^ being his heir at law), he made his will, 
in writing, duly attefted, and thereby devifed the faid pre- 
mifes to r. B. Branißon^ B. D. G. Dillingham^ T, G. Ewert^ 
and jT. Brogravey and their heirs, to 3ie ufe and intent 
that the chancellor, mafter, and fcholars of the univerfity 
of Cambridge^ and their fucceflbrs, (hould and might for 
ever have, receive and take thereout, and every or any 
part thereof, upon truft as therein after was mentioned, 
an annuity or yearly rent-charge of 120/. clear of all 
taxes, and other deduftions whatever, with powers of entry 
and diftrefs as between landlord and tenant ^ and that the 
teftator declared, by his faid will, the trufts of the faid 
annuity or rent-charge in the following words, viz. " I 
do hereby declare my will and meaning to be, that the 
faid chancellor, mailer, and fcholars, and their fucceiTors, 
ihall from time to time for ever (land and be feifed and 
poflcfled of the faid annuity or yearly rent-charge, and 
of the faid powers and remedies for the recovery there- 
of, upon fpecial truft and confidence, and to the intent 
that they (hall, from time to time for ever, pay, apply 
and difpofe of the fame and every part thereof, to fuch 
perfon or perfons, upon fuch trufts, £5*r. and in every 
refpe£l in fuch manner as arc exprefled, Ö'r. in the firft 
twenty pages of a fmall book covered with marbled paper, 
wholly of my own hand-writing, and all the interlinea- 
tions and crafements therein having been made by me ; 
in the twentieth page of which book, there are in my own 
hand-writing, the words and figures following, viz. ** All 
written with my own hand, and bearing date, Bri/lol, 
Sept. 22, 1768, containing twenty pages. — jfo/:fn NorrisJ* 
— And alfo the words and figures following, viz. " This 
is the paper or book, to which my will, bearing date the 
26th day of June, refers. — 7ö/>« Norris.^' — ^That fubjedk 
to, or diargeable with, the laid annuity, or yearly rent- 
charge, and the powers and remedies aforefaid, for the 
recovery thereof, the teftator declared his will to be, that 
t 32 ] the truftees and tlieir heirs fhould ftand feifed of the 
faid premifes, in truft for his own right heirs and alligns 



for ever. — ^That the tcftator, by his faid will, gave to 1 778. 
the faid T. G. Ewen 1000 /. and alfo gave many other pc- ^ -..Jj 
cuniary and fpecific legacies to many other perfons. — Brady 
That by the faid paper or book, to which the will refers, againft 
it is direöed, £5*r. (here was fet forth an account of the Cubitt. 
purpofes to which the annuity given to the univerfity was 
to be applied). — ^That, after making the faid will, viz. in 
May 1773, the teftator married Charlotte To^vnßend ; pre- 
vious to which marriage, and after making the will, he 
conveyed certain lands of the annual value of 1230/. to 
truftees, for the purpofe of fecuring to the faid Charlotte 
a clear yearly fum of 800/. in cafe there fliould be no 
fon of the marriage, and 600/. if there fliould be a fon, 
by way of jointure, and in bar of dower, with remainder 
to himfelf in fee. — ^That the premifes in the declaration 
mentioned, and fo devifed as aforefaid by the will, were 
not comprized in the lafl mentioned conveyance. — ^That, 
on the 13th ol December 1775, *^^ teftator having then 
had no iflue born of the faid marriage, and his faid fifter 
being then his next heir at law, wrote and fubfcribcd with 
his name a paper writing (fet forth in hac verba^ and inti- 
tuled ** memorandum of my intention,") in which, after 
mentioning, that, by the fettlement, his wife (of whom 
he fpeaks in the highcft terms of approbation) had 800 /. 
a year clear money, which his will, ** even if it were 
not prior, could not afFed, and which, he faid, it had 
nothing to do with," declared a further intention in her 
favour as follows, ** My will is, (and if I live to exprcfs 
It in legal formality, it fliall be a coercive will) that not 
only all her jewels fliall become hers, but that flie fliall 
have her choice of half the plate when appraifcd, and of 
half my books. That, moreover, flie fliall have to the 
amount of loo /. (befidcs the harpfichord which I wholly 
give her) in furniture, (according to her own choice of it, 
and befides, ot" over and above the 800/. 1000/. in ca(h, 
to be paid to her within one year from my dcceafe, by 
my executors under my will. — In cafe I fliall not live to 
procure this my will and intention to be according to 
legal prcfcription, I call upon you my dear fifter to fulfil 
my defigns, ufing too all your endeavours that none flinll 
hinder you. — ^To the page on the otlier fide; and to 
the page on this, I have fet my name as above dated, 
John Norrtj.-^Mj friend J. Envcn take a copy of this, 
and if not complied with, publifli it." — ^Th^t, afterwards, 
on the 25th of OBober 1776, the teftator had iiTue, born 
of his faid wife, Charlotte Laura Norrisy the leflor of the [ 33 ] 
plainrifF} and that, on the 27th of December 1776, being 
feifed as aforefaid of the premifes in the declaration men- 
tioned, amongft other real eftates, he fubfcribed his name 
to another paper writing, in the prcfcncc of three wit- 
V0L.I.. D neffea, 


1 77 8« ncflcs,*who, at his requeft, fubfcribed. their names therct^J 

^ {■ *_^ in his prefencc, and in the prefence of each other ; which 

Brady paper writing was dilated by him, and reduced into 

agaioft writing by his order, and was in the words and figures 
Cubit T. follci^ing, viz. '* Metmratidum of what Mr. Norns faid in 
the prefence of Mr. Brotnfieldf J* G. Einen and T, Lunt^ 
on the evening of the 27th of December 1776. That, as 
•his will was made before he married a fecond time, he had 
there de\'ifed his eilate to his heir male, and had given 
1 0,000 /. to the younger children of the Hoveton family ; 
but no^, having a female child, it is his meaning that (he 
fhould inherit the eilate as his heir, and of courfe that the 
10,000/. fliould not become due to the Hoveton children, 
unlefs the faid child (hould die without heirs of her body. 
Mr. Norris alfo means that the 1000/. left to Mr. jf. G. 
£%uen üiould be paid to hinfi, and alfo aU the other legacies 
mentioned in the will to other people, except the above 
10,000/. — John Norris. — And he alfo particularly defires, 
that the college gift may be paid, and difpofed, as he has, 
in the faid will, direacd.— The parchment book re(pe£ting 
the college gift is to ftand.'-^Mn Brograve had ijailructions 
for this, and drew it up," — Witncfe to the above figning of 
the faid J. Norrisy % Broinße/d, ^^ G. Ewen, T. Lunt.^^ 
That the faid clau^ in the faid paper writing laft men-» 
tioned, immediately following the name of John Norris, 
viz. — ** jind he alfo particularly defires^ £5*^." was, by the 
ciireäion of the laid John Norris^ druck out, by feveral 
ftrokes of a pen drawn through the fame, before (he tef- 
tator fignM the faid lail-mentioned paper writings the tef-^ 
tator faying to the perfon who reduced the faid memoran- 
dum into writing,—** You may draw your pen through 
what you have now written, for there is a parchment book 
with the will in the hands of Mr. Brograve^ that mentions 
all about it — ^That, by the words, — " children of the Hove-- 
^< ton family^^* and " Hoveton children," the teftator meant 
the children of his faid fifter^ who then lived at Hoveton-^ 
That the will of the 26th of June 1770^ did not contain 
any detife of any part of the teliator's real eftate to his heir 
male, or to any other perfön, except only the devife of the 
premifes above-mentioned, part of his real eftatey for fc- 

[ 34 ] curing the faid rent-charge to the Univerfity of Cambridge* 
Nor did the faid M'ill contaiii any gift of 1 0,000 /. or any 
other fum of money to the Hoveton children, or any of 
them ; but j in a draught of a will wliich had been prepared 
by the direftion of the teftator in the year 1 768, but had 
never been executed, there was a devife of the principal 
part of his real eftate to his faid filler for life, with re- 
mainder to her firft and other fons in tail-inale, charged 
with the payment of 10,000 L to the younger children of his 
faid fifter^ on certain contingencies therein fpectficd ^ and 
6 the 

In the nineteenth tear of GEORGE III. 34 

the; faid draft contained alfo a bcqueft, of 300 A only, to the j 778. 
faid J. G. Eiuen. — That the teihtor died on the 5th of ^ _ _ * ^ 
January 1777, feifcd m fee of the premifcs mentioned in Brady 
the declaration^ leaving the leiTor. of the plaintiff, his only againft 
child and heir at law; and that he alfo died feifed in fee Cubitt. 
of other real eftates of the yearly value of 2,500 /. — ^That 
after his death, and before the time within mentioned in 
which the trefpafs, £5^^.— The defendant claimed under 
the devife to the univerfity. 

Le Blanc^ For the leiTor of the plaintiff, — ^There are two 
queftiohs upon this fpecial verdi£l. i. Whether the will 
of 1770 was revoked by the ftibfequent marriage, and 
birth of a child ? 2. Wnether, fuppofing it revoked, any 
thing appears on the face of the fpecial verdiä, which, in 
law, amounts to a republication, efpecially with refped to the 
devife lo the univerfity ? i . Before the ftatute of frauds, wills 
of land mad^ under the particular cuftonis of boroughs, or by 
virtue of the ftatute of wills (r), might be revoked by any 
exprefs words wiUiout writings the ftatute of wills giving 
power to any perfon feifed in fee of lands, to devife fuch 
lands by will in writings but being filent as to revocations } 
Brooke V. Warde {d), Symfon v. Kirton {<»), Cranvell v. San- 
JtTS (f). But, befides thefe aBual revocations, there were 
other ads of a teftator which were confidered as revoca*- 
tions, becaufe contrary to, or inconfiftent with, the will ; 
as a devife ixl fee, and afterwards a leafe for years, to the 
fame perfon, to commence after the teftator's death ; Coke 
V. BuRock [g). And thefe cotißru6live revocations were 
raifed, even where the a£ts done were void in law; as 
feoffment without livery ; bargain and fale without enrol- 
ment ; a grant of a reverfion without attornment ; a devife 
to the poor of a parifti, or to a corporation ; Mountague v. 
Jeofftreys (A), Rollos Air. Title Devife (/). In the cafe [ 35 ] 
xÄrorfe \. Hembling (i), it was held, that a fubfequent 
cnarriage revoked a will of land made by a feme fole« 
Now, m all thefe inftances^ the fubfequent deed, devife, 
or marriage, could have no other effcft, but to (hew an 
alteration of intention ; and> therefore, they prove, that 
any a£t indicative of fuch a change, was conftrued to be a 
revocation. The ftatute of frauds ena£ls, that all wills of 
lands (hall ht executed with certain folemnities (/). Then 
follows a claufe prefcribing fimilar folemnities in the cafe 
of revocations (m). But it is determined that this claufe 
docs not extend to implied revocations, or revocations 


(r) 31 H.S.e.l. • lb) Moor 429. 

(d) Dyer 310. (1) P- 614. 

(e) E. 4 Joe. 1 . Cro. Jac. 1 15. (i) C B, M. 30 EL 4 Co. 60. ^. 
(/) M. 16 Jae. 1. Cro. Joe. 497. (/) 2f^ Car. 2. c. 3. ^ 5. 

(i) C. B. M. a Jac. I. Cro. Jac, 49. {m) ^ 6. 


1778. *" ^^^ » S/^^// Cafe («), TZ»^ Earl of Lincoln v. /2ö//f Ö* a/. 
^ f (0), Ticbur V. Tickner {p\ Eyre v. is)r^ (y). Brown v. 

Brady Thompfon (r), Pö*V^« v. Hi/band (/). It is laid down in thofc 

againft cafes, that a fubfcquent marriage and the birth of a child^ 
CuBiTT. is one of thofe changes of fituation, that will amount to a 
revocation in law, of a will of land, as well as pcrfonal 
property. And this doftrine was recognized by your lord- 
Ihip in the cafe of Wellington v. IVilUngton (/). The 
fame point came dire£liy before the court of Exche- 
quer, in a cafe of Chrißopher v. Chrlßopher^ which was de- 
creed 6th of Jul^ 1 77 1 (//); and it was ihere determined, 
by Parker, Chief Barcn^ and Smythe, and Adams, Ba- 
ronsy againft Perrot, Barony that it was a revocation» 
The fame qucftion alfo occurred two years afterwards, in 
Spragge v. Stonc^ at the Cockpit (v). The firtt will in that 
cafe was made in Jamaica^ 6th of Ji4ne 1764, by which 
the whole eftate, real and perfonal, was devif:'d to the de- 
fendant. The teftator married in 1765, and had" iffue 
in 1 7 66. Afterwards, on the loth of OBober 1766, he 
made another will in England^ which was in his own 
hand-writing, I ut not duly attcftcd according to the ftatutc 
of frauds ; by which he dcvifcd his eftate, real and per- 
fonal, to his wife, in truft for his fon. In Anguß 1770^ 
the chancellor of Jamaica decreed, that the marriage and 
birth of a child, and the fecond will, amounted to a revo- 
cation as to the perfonalty, but not as to the real eftate^ 
On tlie appeal to the privy council, Parker, Chief Barony 
De Grey,. Chief Jußice, and f>ir Eardley Wilmot, being 

L 3" J prcfcnt, " So much of the decree of the court of chancery 
in Janiaicay as eftabliflied the will of 1764, with rcfpeft to 
the real eftate, was reverfed •,'* and it was declared, " that 
the fubfequent marriage and birth of a child were, in 
point of law, an implied revocation of the will of 1 764." 
Their lordftiips, in this order of revcrfal, took no notice of 
the fecond will. 2. If the will of 1770, in the prefent 
cafe, was completely revoked by the marriage, and the 
birth of the daughter on the 25th of Ocfober 1776, has any 
thing happened fmce, that can be conftrued to be a repli- 
cation ? That cannot be without the folcmnities required 
by the ftatute of frauds ; Gilberts Law of Dcvifes (w)y 
Bunker v. Coohe (a). The due execution of a codicil is not 
fuiTicicnt to republifh a will. It was determined in LjttOH: 
V. Lady Falkland^ and in Penphrafe v. Lord Landfdoivney 


{n) Carth. 81. (/) ^. R, 8 G. 5. /////. J^Burr. 2165. 

(0) hxDom, Proc, 1695, ^ ^i- ^^- («) 4 l^urr, Ziyi. Note. 2l8z. 

'i^l ?''f^ 3 AfL 742. M 27 March 1773. 

(r) T. 1702.. 1 Eg. Ca. 413. (;r) Fifz GM. 225. CiJi. Dev. IZQ. 

(/) M. 1712, I Eg. Ca. 412. 


both cited in Comyns^s Reports {y)> So, by cancelling a 1 778» 
fecond will, one of a prior date is not revived ; Burthen-- ^ 

Jbaw V. Gilbert {%) [f 14]. The memorandum of the 27th Bradt 
of December 1776, is not found by the verdift to relate to againft 
the will of 1770« It refers to the devife to the teflator's Cubitx. 
lifter's children, which is contained i,n the former will of 
1 768, and not in the latter. That part of it, in which it 
is faid to be his intention that the college gift (hall Hand, 
was not figned, and is fcratchied out. It may be contended 
that it is included under the words, " all the other lega- 
cies," and it will be faid there is parol evidence of what 
the teftator faid, when the erafement was made. But the 
diftin£lion is clear between a legacy and a devife, and no 
parol evidence fhould be received to explain the teftator's 
intention contrary to the legal import of the language he 
has employed ; Strode v. Ru£el {a)y Cole v. Rawlinjon (^), 
Bertie v. Falkland {c). 

Graham^ for the defendant, — I admit that implied revo- 
cations fubfift as before the ftatute of frauds. But I am 
to contend i. that there has been no revocation of the will 
of 1770. None Df the cafes have gone fo far as to fay 
that marriage, and the birth of a child, necejfar'ily revoke a 
will. The doftrine is derived from the ecclefiaftical courtß. 
Jn Lugg V. Lugg {d)i which was decreed by the delegates, 
marriage, and the birth of a child was declared to be 
merely a prefumptive revocation. The will there was only [ 37 ] 
of perfonal property. In the cafe of Shepherd v. Shepherd 
£10], which was fent out of chancery by I-.ord Camden for 
the opinion of Sir George Hay^ it was determined, that the 
fubfcquent birth of children, even in the cafe of perfonalty, 
did not amount to a revocation. Brown v. Thorn/on, ex- 
^nded the rule to real property j but that cafe, as ulti- 

ij) 383» 384. added a codicil, whereby he dire(5ed 

(«) B. R. E, 14 Geo. 3. [f 14]. that the legacies fhould be paid, and 

(a) z Fern. 621. 624. S. C. with that an annuity of 300/. /^rÄww. Ihould 

Lytto» V. Lady Falkland, be fecured on the reßduum, and paid to 

{h) B. R. H. I Jnn. 1 Salk. 234. his daughter. The codicil and will 

(c) Cane. H. g IT, ^, 1 Salk, 231. were found together. In 17Ö5, ano- 

{d) E, 11 W, j|. I Ld. Raym. 44.1. ther daughter was born^ and in 17Ö8, 

% Salk, 592. a fon, who was a pofthumous child, 

[10] The following is the Hate of the tellator being dead about fix months 

the faäs in that cafe. " Shepherd the before his birth." — Sir George Hay^ in 

teflator having made his will, after giving his opinion that the will was not 

fome fmall legacies to his collateral re- revoked, delivered a very folemn and 

lations, made hb wife redduary legatee, learned argu:r. *nt, in which he ftatcd 

After the making of the will, his wife and examined a number of cafes not in 

was brought to bed of a daughter in print, as well as thofe contained in the 

IJ63, upon whofe birth, the teftator different reporters. •' 

[t 14] Since reported, CViu/. 49. 
P 3 


I778« mately decided, proves that it does not hold univcrfalljri 
y_ _ _ _f for there the will was cftabliflicd by Lord Keeper Wright^ 

Brady becaufe the prcfumption was rebutted by other circum-^ 

againfl ftances. In Chrißopher v. Chr'iflopkerj there was a difpofi- 
Cub I TT. tion of the ivhole eftate, and the child, if the will had 
flood, would have been without any provifion. Spragge v. 
Stone went entirely on the authority of Chriflopher v. Chrif" 
topker^ and, in the decree, it is called an implied revocation. 
Now, if this fort of revocation is only prefumptive, it 
may certainly be encountered by evidence. Serie v. Lord 
Barringion {e). Such evidence has always been admitted \x\ 
the ccckfiaftical courts, as appears by Sir George Hays 
judgment in Shepherd v. Shepherd, What are the faös in 
this cafe ? A draught of a will in 1 768, by which the tef^ 
tator devifed his eftate to his fifter and her ifl'ue in taiU 
with 10,000 /. to her younger children. This was never 
executed. Then, in 1770, the will in favour of the unr- 
verfity. And it is to be obfervcd, that the devife to then\ 
is only of a v^ry fmall part of the teftator's eftate— merely 
a farrii. Then an ample fettle ment on his intended wife. 
Afterwards the marriage in 1773. Then, in 1775, the 
tcftamentary paper fet forth in the fpecial verdift. In Ot> 
tober 1776, a child born; and, in December of the fame 
year, the laft paper attefted by three witneiTes. In that 
paper, the teftator does, in fome degree, confound the 
draught of 1768, with the will of 1770, and refers to 
both. He certainly refers to the latter, becaufe he mcn- 

[ 38 ] tions the legacy of 100 /. to Ewen. But in the cafe of pre- 
fumptions, parol evidence is undoubtedly admifllble. Anc\ 
it appears that when he direfted the additional claufc rela-: 
tive to the college gift to be ftruck out, he fpoke of the in- 
ftrument of 1770, as his will. This rebuts every pre- 
futnption that he meant to revoke it. — 2. But, if the court 
were to hold, that the marriage, and birth of a child, did 
revoke the will of 1770, I contend, in the next place, that 
the paper of the 27th December 1776, refers to it with fuf- 
ficient certainty to amount to a republication. To cftar 
blilh this pofition, I rely upon Carleton Lejfee of Griffin v. 
^^!ffi^ (/)> ^ond V. Seawell (^), Acherley v. Vernon {h\ cited 
in Bond v. Seawell^ and Molineux v. Afolineux (i). 

Le Blanc f in reply, infifted on the cafes of Chrißopher v. 
Chrißopher^ and Spragge v. Stoncy as having exprcfsly cfta- 
blifhed that a fubfequent marriage, and birth of a child, 
. amount to an abfolute revocation. He faid that the admif- 
fion of parol evidence, or of any writing not executed with 
the folemnities prefcribed by the ftatuce of frauds^ would 


(0 M. 1 1 Geo. I. z Ld.Raym. 1370. (g) M, 6 Geo, 3. 3 Burr. 1773. 
S McJ. 278. 2 Str. 826. (h) M. 10 Geo. 1. Comjns 381. 

(/) ^' 3» G^«- 3t. I Burr. 549, (/) H. z Jac. I. Cro. Jac. a^. 


be .of the moft dangerous confequence, and would lead to 1 778« 
nil the inconveniences of perjury, which that aft was cal- i_ m, i , j 
culated to prevent. That, in Chriflopher v. Chr'tßopher^ the Bradt 
judges founded their opinion as to revocations by marriage again ft 
and the birth of a child, on this, tliat thofe circumdances Cubitt, 
were matter of faft eafily afcertained, and of fuch noto- 
riety as not to occafion any danger of fraud or perjury, and 
that Adams^ P^fOfh in that care, expreiled a Itrong difap« 
probation of taking otlier extrinfic circumftances into con- 
nderation. And he contended, that the paper-writing of 
December 1776, did not refer with fufficient certainty to the 
will of 1770, for diat to operate as a republication, and 
that a reference by a fubfequent inftrument, though pror 
perly attefted, muft be clear and unambiguous, in order to 
re-eftablifh a will which has been revoked. 

(Ditmiing mentioned to the court, that he had argued 
the cafe of Spragge v. Stone. That it was a|;itated at th^ 
bar, whether the Itatute of frauds extends to Jamaica ; bu^ 
tliat the judges thought it unneceflary to decide that quef- 
tion, and that the decree was penned as it i§, merely that 
It might be feen abroad^ that the privy council had not dcr 
jcided it [Ö*].) 
r Lord Mansfield, — I had no doubt upon this cafe, froni 
the beginning. I have travelled a good deal through the 
queftion ; I argued moft of the cafes when I was at the 
bar, relative to implied revocations of wills of perfonalty. 
Sir George Hafs decifion is not applicable to the prefent [ 39 1 
queflion, becaufe the point there was, whether the birth 
of a child alone, operated as a revocation^ He held that 
it did not. And, in that cafe too, the child was totally 
unprovided for. A fybfequent marriage, and the birth of 
a child, affords a mere prcfumption. There may be many 
circumftances where a revocation may be prefumed. The 
cafe in Cicero is 9n old and well-known inftance of fuch 
prefumptions (i). But, upon my recolleftion, there is no 
cafe jn which marriage and the birth of a child have beei| 
Kejd to raife an implied revocation, where there has not 
been a difpofition of the whole eftate. It was a total dif- 
poficion in Chrlftopher v. Chriflopher^ and in Spragge v. 
Stone; and it has always been a total difpofition in the cafes 
Qf perfonal property, oecaufe, by making an executor, the 
whole is di^fed of. In fuch cafes, the inference is ex- 
ceiEvely ftrong in favour of die \Kife and children. But I 


[|>]BySut. 25GM.2.r/r/.6. §10. (tatutc of frauds doci not bind Bar- 

that ad is made to extend <' tQ hadoes, 

fiich of the colonies and plantations, (i) Pater credemi filiitm fuum effe mot- 

where the (bittite of frauds is by a£i tuuin^ alterum inflituit baredem. Fili9 

Qf aflembly made, or iy u/age, re- domi redeuntt, bum it^itutiomt v'i (/^ 

cdred as law/' In z P. IrilL 75. it mdla. Cic? de Qratorc. 
is faid to have beei) deeded that the 



1778. doubt extremely (I give no opinion), whether the circum- 
^ _' J fiances in this cafe are fuch as would raife the prefumption. 

J5RADY The teftator difpofes of a fmall part of his cftate to a cha- 

againft rity. Then, in contemplation of his marriage, he fettles 
CuBiTT. 800/. a year upon his intended wife, with remainder to 
himfelf in fee. It is clear, tliercfore, that he contem- 
plated the change in his fituation after the will, and pro- 
vided for it as to his wife \ and, with regard to the chil- 
drerf, he may well be fuppofed to fay, I will keep them in 
my own power. Suppofe a man had given fevcral legacies 
by a will, and had devifed all his real eftate to the ufe of 
his children when he fhould have any : would a fubfc- 
qucnt marriage and the birth of a child have revoked a 
will of that fort ? — But I am clear on the other ground, 
that this prefumption, like all others, may be rebutted by 
every fort of evidence [f 15]. There is a technical phrafe. 
for it, in the cafe of executors : it is called rebutting an 
equity. Lugg v. Lugg is (Irong to this point. Thomfon v. 
Brown was decided upon a particular^ againft a general^ 
prefumption ; and Sir George Hay appears ^o have under- 
flood this to be the law. Now the intent here is glaring 
from the writings found by the vcrdift. Mr. Le Blanc ad- 
mits that there is evidence to rebut the prefumption. If 
that were more doubtful, I think Mr. Graham is right, that 
the indrument of the 27th of December 1776, fcts up the 
devife to the univerfity. This inftrument was written after 

[ 40 ] the birth of the child. The teftator had ordered a draught 
'of a will to be prepared in 1768. After^/^'ards, in 1770, 
he makes the will in queftion. Now what appears on this 
inftrument of December 1776 ? The teftator remembers the 
difpofitions, both of 1768 and 1770; but is not corredi; 
as to which of them he had executed. But his meaning is, 
that his eftate ftiould go to his daughter. — That the 10,000/. 
lliould not be paid. — As to the legacy of 1000 /. to Eiven^ 
that was to ftand. — " And aljo all the other legacies^ — The 
word " legacy," in its ordinary fignification, is applied to 
money, but it may fignify a devife of land [(Ö*], and may 
here comprehend the devife to the univerfity, which tlie 
teftator calls a gift. 

WiM.Es, JujVicey of the fame opinion. 
AsiiiiuRST, Jtißicc^ — I am of the fame opinion. There 
was a ftrong cafe in this court, E, 13 Geo. 3. on the firft 
point, as to the adniiffion of parol evidence X.o rebut an 
equity, or implication. The qaufe had been tried before 

BuM.ER, Jtißice^ — I am of the fame opinion. I argued 

the cafe alluded to by my brother Ashhurst. It was the 

* cafe 

[f 15] VideSkinn. 227. Beckley'v. Ne^vland, Cane. T. I723. 

its-] S. P. Per Lord lilaccles/ild, 2 P. Pf\ i82, 186, 187. 


fz£e of Rogers v. Langfield ; and was decided on the 1 778* 
authority of Laie v. Lake (k) before Lord Hardwire. y_ / _ ^ 
Burten/haiv V. Gilbert did not go upon an implied^ but an Bradt 
^xfr^ revocation, for the firft will was in two parts, and agaioft 
the teftator had cancelled one of them. In Goodright, leffee, Cubitt« 
of Glazier v. Glazier^ a will revoked by a fubfcquent wiUj, 
but not cancelled, was held to be re-eftabli(hed by the can- 
cellation of the fubfequent will (I). Implied revocations 
niuft depend on the circumftances at the time o( the tct 
(ator's death. 

Judgment for the defendant [f 16]. 

(k) In Cane. 1751. 1 JVilf. 313. Goodrigbt, leße of Reife, 3 JVilf, 447. 

jJnv ofNi.Pr. Ed, ijJS-f- 297. z Blackfi. 937. and on error in -fi. K. 

(I) H. 10 Geo. 3. -j^Burr. 2512. T. ig Geo. 3. Coov/. '87. Staton v. 

[f 16] Hide V. Maßn, 25 Nov. Sutton, B. R. E. 18 Geo. 3. Cmi^. 

^734. ^ Fin. 1^0, fl. 1 J. Harwoodv. 8l2. 

AcKWORTH againß Kempb, 

THE goods of one Wife had been conveyed to Acl» If on a fi. &« 
loorth the plaintiff, by a bill of fale, and had aftually againft A. a 
been removed from the houfe of Wife. Two writs oi fieri J'hc '^^^'f 
faciasy at the fuit of different perfons, againft Wife^ were g, tfcfpaft^Ucf 
•delivered to the flieriff of Sujfex^ (the prefent defendant,) againft the 
who gr.anted warrants to his officer to execute them. The öwriff. 
officer, in confequence of the warrants, took the goods [ 41 i 
above mentioned in execution, and fold thcra. Upon ^ 

ihis, Ackivortb brought an aöion of trcfpafs vi et armis 
againft the iheriff, (without jpining the officer as a de- 
fendant.) . The caufe was tried before Eyre, Baron^ at 
Horjham fummer affizes, .1778. The defence was> that 
the bill of fale to the plaintiff was voluntary and frau- 
dulent. Both the writs of fieri facias were produced, 
and a copy of the judgment on which one of them haq 
iffued. The copy of the other judgment could riot be 
I'cad, becaufe the witnefs, who was to have proved it, 
was interefted. On the part of the plaintiff, ftrong evi- 
dence was produced to fhew that the bill of fale was fair, 
and that a valuable conGderation had been given for it. 
The judge direfted the jury to find for the plaintiff (at all 
events, and whatever they might think of the bill of fale) 
as to the goods taken under the writ, in the cafe where the 
judgment on which it iffued had not been proved ; being of 
opinion that the writ itfelf is not fufficient evidence, un- 
lefs where the aöion is brought by the perfon againft 
whom the ^^i yar/W had iffued. The jury thought that 
the faimefs and confideration of the bill of fale were 
proved, and they accordingly found a verdi£l for the * 

j' ' ' ' ' plaintiff. 


^778* plaintiff, with damages to the amount of the fum fof 

t - , \vhich all the goods had been fold under the executions. 

Af^ WORTH The plaintiff had produced evidence to fliew that the real 

igainft value was much greater, and equal to what appeared on 

Kemps. the bill of fale. The defendant, on the contrary, had in- 

fifted, that, if the jury ihould think the plaintiff intitled 

to recover, thcv ought to deduft, from the fum for which 

the goods had been fold, the fheriff's poundage, and the 

ether expences of the executions. (This was on the 

ground^ that the parties at whofe fuit the goods were 

taken, were the real defendants i they having indemnified 

, jthc (Hcriff,) 

A new trial was moved for, on four grounds, viz* 
1. That the verdjfl was contrary to evidence, the bill of 
iajc being voluntary and fraudulent^ 2. That there had 
been a mifdireäion on the point of evidence. 3. TJiat 
the damages were exceffive, the dedu£lions contended for 
»ot having been made. 4. That the aöion would not lie 
stgainfl the Qicriff, bccaufe his warrants being to take the 
goods of Jf^jfe, he had given no authority to his officer 
to take thofe of any other parfon, and, therefore, was not 
anfwerable, if goods whicn d|d not belong to fflfe h?^d 
l>een taken. 
[I 42 3 Keinpty Serjeant, Robwßm^ and G. Wiljon^ for the plain* 


Dunning^ and Morgan^ for the defendant. 

On the day when caufe was fhewn, the court was clear- 
ly againft granting a new trial on any of the three firfl 
grounds. Lord Mansfield faid, he had not the leafl 
doubt, from the evidence flated in the learned Judge's 
report, that the bill of fale was fair ; which, he faid, laid 
the queftion on the fuppofed mifdire£lion out of the cafe. 
BuLLER, Jttftice^ recognized the diflindion made by 
Eyre, Barony on that queflion, and faid, it was founded 
on the authority of a cafe in Lord Raymond (w). — With 
regard to the objedion to the aäion, the court took time 
to cohfider \ Lord Mansfield obferving, that, if trefpafs 
would not lie, no other adion would, and that the point 
was, therefore, of very extenfive confequence. 

Some days afterwards Lord Mansfield delivered the 
judgment of the court, to the following effc£l : 

Lord Mansfield, — ^The only queftion now remaining 
is, whether trefpafs vi et armis can be maintained againft 

a iheriff 

(m) LaJii V. Siller J. 1 Ld. Paym, Sofuagi fui tarn v. Smith, C. B. 7*. 
735. JLflw^M*. /*r. 91. edit. 177J. 16 G». 3. %Blackfi. 1104. [f 18] 
Vidi the fame doflrine recognized in 

[t 18] yidc^XoMartiny.Podger, B.R. 2 BUckß. 701. 5 Burr. 2631. 


a flicrifF for goods taken in execution by his bailifF, which j 778. 
turn out not to have been the goods of the perfon agaittft > _ ^ 

whom the ßeri facias iifued. On the part of the defend- Ac k worth 
ant it has been argued rather on «authorities than on prinoipie. agai^it 
The authorities cited were z Rollos Abr, 552. title Tref- JLimp«» 
pafsy pi. 9, 10. and Saunderfon v. Baker et aP. in C. J5. tH 
12 Geo. 3. (ft). The paflage in RolUs abridgment does 
not warrant tnc objeäion. The cafe there, when rightly 
underftood, will appear to be a particular exception to the 
general rulej and the true inference from it is, that, 
where there is no exception, the fherifF is liable* The 
bailifF of a franchife is not the oflScer of the flierifF. 
[(0* i] He gives no fecurity. It is evident from//. 5. in 
the fame page, that th!s was Rolle\ meaning. He there 
ftates, that, if a (herifF take one man for another, falfe 
imprifonment lies againft him; and, although he fays, ** if 
^Iheriff take, to*r." he means his bailiff; for fheriffs never 
did execute proccfs in perfon [f i ?]• Eor all civil purpofes 
the aft of the (herifPs bailifF is the aft of the fherifF. 
{tcy 2] If there could be any doubt, it is cleared up by 
Xhe very cafe in the Common Pleas, which has been cited 
for the defendant. It was faid, at the bar, that that cafe [ 43 3 
was determined on the ground of recognitim [11] by the 
(heriff, and that the court was equally divided. The 
printed account of the cafe fhews the danger of inaccu- 
rate reports [12]. I have a very correft report of it from 
Mr. Jtiflice Bi.ackstone's own notes; which I will read. 
(Here his Lordfhip read the cafe exaöly as it has been 
fince printed (0).) In fhort, the point appears to be ex- 
^emely clear 5 and it was not fair to puzzle us fo long 
with it, as it feems the objeftion was fuggefled to Mr. 
Serjeant Glyntt^ who led for the defendant at the trials 
and he would not take it, thinking there was nothing 
|n it. 

The rule difcharged. 

(u) 3 Wilf. 309. 2 Blackß. 83 2. rifF. If the aft of the bailifF is not the 

[ö* l] Boothman v. the Earl of Sur- aft of the high-fticrifF, neither is the 

jrjr, B. R. r. 28 Geo. 3. 2 Term Rep. 5. aft of the under-fhcrifF. 

[t 17] Vide Backwtll s . Hunt t Noy [12] The account of the cafe, in 

107. Wilfwy agrees pretty nearly with Mr. 

[l^ 2] Woodgate v. Knatcbhull, B\ ^/^iV* Black stone's report. It is 

R, M. 28 Geo, 3. 2 Term Rep. 148: much fuller; thoueh not quite fo ac- 

150.154. ^ curate in dillin^uifhing what the judges 

[11] The recognition in that cafe fiiy on the pomt of the recognition» 

was only by the under -fieriff, Ho^ ik>m what they fay on the general 

could that alter the aueflion ? It is 'j^ueflion. [|^1 The determination 

mentioned as decifive oy all the three b.ftated, to have been on the ground of 

jodfes who delivered their opinions on the^ogfi^p'on« in the argibient at the 

thcTnotion for a new trial. Yet it bar, in theroÄof Badkin v. Powell, 

feems that fuch a recoenition could B. R, M. i> Gm. 3. Cowp. 476, 477. 

onl^make it the ad of the under-fhe- (oj z Black. 832. 



%j^iYi Nov. 

HuRD, againß Fletcher and another, Ej^c* 
cutors of Sir John AsTLEY, Bart. 

A fine being 
levied of a 
feme covert's 
f ftate» with a 
joint power to 
the huib.ind 
und wste to 
decluie the 
iifes } and the 
vfe» being de- 
clared by the 
huiband and 
wife in re 
inainHfrto \ ; 
If thehuiband 
fnalce a leafe 
and covenant 
for quiet pof 
itflHon againlt 
9ny perfon 
claiming un- 
der him J and 
A. evift the 
tenant, an ac- 
tion on the 
covenant will 
lie againft the 
huiband's ex- 

n 44 ] 

SIR John Aftley granted a leafe to the plaintiff, in which 
there was a covenant in the following words : " And 
the faid Sir John Aßley^ for himfclf, his heirs and af- 
figns, doth covenant and promife, to and with the faid 
John Hur4i his executors, adminiftrators, and affigns, by 
this indenture, that it (hail and may be lawful for the 
faid John Hurjy his executors, adminiftrators, and af- 
figns, to have, hold, ufe, occupy, poifefs, and enjoy, all 
and fingular the faid demifed premifes, with the appurte- 
fiants, and receive and take the profits thereof, to his 
and their own ufe and benefit, without any let, fuit, 
trouble, interruption, or difturbancc of the faid Sir John 
Aftley^ his heirs or affigns, or any perfon or perfons claim- 
ingf or to claim by^ from^ or under him^'* The leflee having 
been evifted by lord TankervilUi who had fucceeded to 
the eftate, this aftion was brought, upon the covenant, 
againft the executors of Sir John, The defendants plead- 
ed, that Lord Tankcrville^ at the time of his entry into 
the premifes, and evifting the plaintiff, " did not claimy 
* nor was intitled to the premifes by^ for^ or under the 
fiiid Sir John JftleyJ' The caufe was tried at the laft 
fummer affizes at Shrew/buryj when a fpecial verdift was 
found, which ftated, in effeft,— That Lady Aflley^ being 
fcifed in fee, intermarried with Sir John Aftley, — -That, 
in 1 716, after the marriage, by indentures between Sir 
John and Lady Aßley of the one part, and truftees there- 
m named of the otlier part, Sir John and lady Aßley co-. 
venanted to levy a fir^e, the ufes of which they thereby 
declared to Sir John for life, remainder to truftees to fe- 
cure 500/. a year to Lady Aßley for life, remainder over ; 
with a power to Sir John to make Icafes, under the ufual 
reftriftions 5 and with a joint power of revocation to Sir' 
John and Lady Aßley ^ during their joint lives.« — That a 
fine was accordingly levied.— That, afterwards, by a, 
joint deed executed in 1753, ^^^7 revoked all thofe ufes 
declared by the indentures of 17 16, which followed the 
eftate for life, and power of leafing given to Sir ToA//, 
and declared new ufes to Lady Aßley for life, witn in- 
termediate remainders, remainder to Lord "Tanherville m 
tail. — ^That, in 1771, Sir John Aßley made the leafe to 
the plaintiff, containing the covenant on which the aäion 
was brought, and which leafe was not agreeable to the 
leafing power refcrved by the fettlement. — ^That tlie plain- 


tiff entered. — ^That Sir John Aßley died foon after, and 1 778. 
all the prior cftatcs being determined, Lord Tanherville^ y -^ _ ^ 
eftate vefted in pofleffion, and that he had taken advan- Hurd 
tage of the defecä in the leafe, and had evifted the plain- again ft 
tiff. The queftion was, whether Lord Tankerville claimed FLETCHEie. 
under Sir Johfty or only under Lady Aßley. If under 
Sir John^ the plaintiff was entitled to maintain this action 
of covenant. 

Leyceßer^ for the pIaintiff.-^J5fö^t;/r, for the defendant. 
Lord Mansfield defired Bower to begin. 
He argued, i. That the deed declaring the ufes, and 
the fine, were to be taken together, and confidered as 
making only one conveyance : and that perfons taking by 
virtue of a power, take under the perfon who creates 
the power, not under him who executes it. 2. That, a 
hufband is only joined in the fine of a wife's eftate for 
conformity, but that the fine is confidered as the aft of 
the. wife, not of the huft)and, and the conufee is in 
by her only, infomuch that, if a wife levy a fine 
without the hufband's concurrence, and he do not enter 
during the coverture, it will bar her after his death. 
3. That, when a revocation of a prior declaration of ufes 
has taken place, under a power to revoke, and new ufes [ 45 1 
are declared, the new declaration of ufes makes part of 
the fine, and is to be* taken as tlie fame conveyance 
with it, in like manner as the firft declaration would 
have been, if it had not been revoked. And, therefore, 
if perfons claiming under the firft, were to be confider- 
ed as in of the wife's eftate only, fo muft thofe claim- 
ing under the fecond. He cited i Atk. 560, ex parte 
Cafwally Bro, Abr. title Fines (a)y Roll. Abr. p. 346 (bj^ 
Zouch v. Bamfield (c)y Doey lejfee of Odiarne^ v. White" 
head (d), Beckwith's Cafe fej, Charnock v. IVorßey (f)^ 
Holland V, Jackfon (g)^ Mary Partington's Cafe (hjy Daniel 
V. Ubley fi% CromwelPs Cafe (k). 

Lord Mansfield faid, the cafe was fo clear, that Ley^» 
tefler had no occafion to reply. Juftice was ftrongly with 
the plaintiff. It was true that a fine, and the deed to 
lead the ufes, were to be confidered as one conveyance ; 
but as Sir John Aßley was a neceffary party to the fecond 
declaration of ufes, by which the eftate was limited to 
Lord Tankerville^ hi« Lordftiip certainly claimed under 
bixn, within the meaning of this cwenant. Undoubtedly 


(a) PL 5v (f) Cro. Eliz. 129. 1 Leon. tlJf. . 

(h) N, pf. I, (gj Brtdgman 75. 

(c) I Leon. 82. ChJ nCo,^^. 

(d) 2 Burr. 704. (i) Sir W. Jews, 138, 
OJ. 2 Co. 56. b. (kj 2 Co. 73. 





CASiis in.michAeLmas term 

Sir John had covenanted againft hi& own afts, and thet 
new limitations were created by one of his afts. 

Judgment for the plaintiff [i]. 

[i] Leyceßer meant to have cited ButUr 
umer XXQ. 

V. Swi/mertofi* 

Palmer 339 

14th Nor. 

Bail IS to be 
difchamd, if 
the «lefendant 
fuccecd to a 

Trinder againß Shirley. 

ON Monday the i6th of November ^ Bower had obtainea 
a rule to (hew caufe, why an exoneretur ihould not 
te entered on the bail-piece ; the defendant having be- 
come a peer, (by fucceffion to his brother the late Earl 
Ferrers.) The ground of the motion was, that it was 
no longer in the power of the bail to furrender the 

Baldtuiftj for the plaintiff, now declared, that he could 
not ftiew any caufe againft the rule. Upon which it was 
made abfolute. 

Tliis was faid to be the firft inftance of the kind that had 
come before the court. 

aift Nov. 


The removal 
of a feme co- 
vert is evi- 
dence of the 

* The King againß the Inhabitants of 

'TpWO juftices removed a married woman, and her 
* child, from Ewell to Leigh^ in the abfence of her 
hufband. On an appeal, this order was quafhed. The 
hufband afterwards returning to Ewelly he, together with 
the wife and child, were removed, under a new order 
to Leigh; which laft order the feffions confirmed j but, 
upon a certiorari^ and a rule to fhew caufe why it fhould 
not be quafhed, the Solicitor General now gave it up, as 
not to be fupported fince a late determination of the fame 
queftion, in the cafe oi Rex v. ISnckfworth (l) [13}, 

(I) H. 18 Geo. 3. 

[13^ That cafe was as Mows :— 
'two jttfHces removed Sarah, calling 
her, in the order, the wife of Jo/eph 
Orißn, and five of her children, from 
Cbejhuni to Hinck/worth, in the hqf- 
band*s abfence, and- without having 
exambedhim. This order was not 
Appealed from. The huiband Toon 
after went to his wife and children 
at Hiack/wortb, from whence they were 

all fent back under a new order to 
Cheßunt. The parifh of Cheß>uitt ap- 
pealed againft this order, and produ-< 
cing the former one, iniiilcd that it 
wa^ condufive as to the huiband, as 
well as the wife and children. The 
feffions, however, after hearing evi- 
dence as io Griffin's fettlement, confirm- 
ed the new order as to him, and quafh" 
ed it as to the wife and children. The 
wife then went back with her children, 



Thornton againß Dallas. Jlk^fe 

ACTION for money had and received. Picas. -^ Though s 
I. The general iffiie, — 2. A bankruptcy on' the 10th prior commif- 
of February 1774.— The replication to the fecond plea ad- jy'J^j^y"^." 
mits the bankruptcy, and that the plaiittifF's cauie of f^nt, a lecoiul 
adlion accrued before; but the plaintiff further fays, bankruptcy 
that, after the 24th oi June 1732^^1^, and *, after the doc» not pro- 
making of the ftatute 0*5 Ge$. 2. c. 30. and before the J^^"^"^]^, 
ifluing of tlie oommiffion of bankruptcy in the plea men- fiftccnftillingi 
tioned, to vit, on the 6th of November 1754, the defend- in the pound 
ant was difcharged as a bankrupt, and that, on the 2d of ««* pa«<i öader 
June 1764, he was again difcharged as a bankrupt, un- ^t^^^^^^^ 
der that a6t of parliament ; '< and that the eftate of him # f 47 1 
the faid defendant, again ft whom the faid commiiBon was 
awarded, under which he was declared and became a 
bankrupt, as in the faid plea is mentioned, hath not 
produced, nor wiU. produce, clear after all charges, fuiE- 
cient to pay every creditor under the faid commiflion, fifteen 
(hillings in the pound for their refpe£^ive debts ; to wit, 
at LdHdon aforefaid, in the parifli and ward aforefaid ; and 
this the plaintiff is ready to verify. Wherefore he prays 
judgment, and his damages by him fuftained, by reafon 
of the non-performance of the feveral promifcs and under- 
takings in the faid declaration mentioned, to be adjudged 
to him, according to the form of the ftatute in fuch cafe 
made and provided, £5*r." — Rejoinder. — ** That the com- 
miffion of bankruptcy, under and by virtue of which the 
faid defendant is, in and by the faid plea pleaded in re- 

to her hafband at Cheflfunt, After thing m this cafe. It is admitted, 

which, a third order was made, re- that if they had put into the firil or- 

moybg the children again to Qhejhunt. der» that it was the hufband's fettle- 

This was likewife appealed againfl, ment, that would have been condu- 

and confirmed as to all, but two of the five, and the omiiTion makes no dif- 

children who were under feven years ference. The general cafe is, that the 

of age, as to whom it was (juafhed. huiband's fettlement is the fettlement 

The cafe had come on in this court of the wife [f 19]. Tiiere are fome 

the term before, but the firfl order not fpecial exceptions ; as where the huT- 

having been flated, on which the whole band is beyond fea. But the prefump- 

qaeftion turned, it was poflponed till tion is in favour of the general rule ; 

that order ihoukl be brought before the and if this had been the cafe of an ex- 

court. Bearcroß and Stanley now ar- ception, it ought to have been ftated* 

ffued ia fupport of the lafl order. — The rule was made abfolate to 

Wallace and Thornton on the other qua/h all the orders but the firfl. 

fide. Lord Mans/ielä^The pauper fnlj 5 Geo. 2. c. 30. § 9. 
iocs not complain. There is no- 

[119] JUx V« tie inhabitants of Ealing^ M. 25 Geo, 3. 


ply, fuppofcd to have been firft difcharged after thf 

ifluing thereof, to wit, on the 26th of -^n7, in the feven- 

THOR^Tt N teenth year of the reign of our Lord the now King, at 
againll London aforefaid, in the parifti and ward aforefaid, by a 
Dallas, certain writ of our faid Lord the King oi fuperf ideas y the 
date whereof is the fame day and year laft-mentioned^ 
then and there duly ifi'ued out of the court of our faid 
Lord the King of his high court of Chancery^ the fame 
court then arid ftill being at Weßminßery in the county of 
Middlefexy under the great fcal of Great Britain^ was, in 
due manner, difcharged, and fuperfeded." — The like fu' 
perfedeas to the fecond commiflion. — Sur-rejoinder. — ^That 
the original writ in this zikion was fued out, on the ift of 
November 1776 j and that the ^f^ commiflion in the re- 
plication mentioned, was fuperfeded, on the petition of 
the faid defendant, by and with the confent of all the 
creditors who proved debts under that commiflion ; the 
fecondy in like manner ; and, that the fame commiflions 
were, and each of them was, fuperfeded, after the fuing 
out the faid original writ» — Demurrer ^ and joinder in 

CowpcTf for the defendant,— The quefl:ion is, whether, 
under the ftatute of 5 Geo, 2. f. 30* § 9. Dai/as is dif- 
charged by the commiflion of bankruptcy which he has 
pleaded ; or whether his future cf^e£ls remain liable ? 
r 48 1 There are two grounds made, why the writs oi fuperfedeas 
ihould not operate in his favour; — i. That they were 
after the original writ ; — 2. Becaufe they were obtained 
on the petition of the bankrupt, and by the confent of 
the creditors. As to the ßrß^ the commiflions being now 
fuperfeded, though the bankrupt did not pay fifteen fliiU 
lings, they are as if they never had exifted ; and, as to 
f xhtfecondy I do not underftand what difference it makes. 

The Chancellor has in fa£l fuperfeded them 5 and it does 
not appear what his ground was. If they are become as 
nullities, the allegation that fifteen {hillings in the pound 
were not paid, is perfeftly nugatory. The defendant can- 
not have the benefit of the former commiflions. He 
fliould not, therefore, be prejudiced by them* He cor-»' 
^nly could not plead his certificates under them. It 
inay be faid the fuperfedeas may be obtained by collu* 
^on. But collufion is not to be prefumed; it fliould 
have been pleaded. The probability is, that the Bankrupt 
conformed in every thing that was neceflfary, the creditors 
being fatisficd. I can find no cafe on the fubjcö ; from 
whence I infer that no fuch claim has ever been attempt-^ 
cd, where the former commiflions were fuperfeded* 

Davenport for the plaintiff, — It is under the laft bank- 
ruptcy that the adl requires fifteen fliillings in the pound 
to be paid, in order to protedl future effcdis» The de- 


, fendant pleads his laft bankruptcy. The replication is, 

that }ie became a bankrupt in 1754, and again in 1764. _ 

From the rejoinder it appears, that he refted under the Thorn tow 
bankruptcies of 1754 and 1764, till 1777. That he finds againft 
himfelf prefled upon, becaufe the ftatute fays, unlefs you Dallas, 
pay fifteen fhillings in the pound, your future efFefts fhall ^ 

be liable. Upon this, at the diftance of above twenty 
years from the firft of the two commiflions, he gets the con- 
fent of his creditors under thofe commiflions, (who have 
no intereft to oppofe it,) to their being fuperfeded. He 
admits that he was ^/charged under the two former com- 
miflions. That is fufficient for my purpofe ; for the words 
of the ftatute are exprefs, that when a bankrupt has been 
^ifcharged under a former commiflion, his effefts fhall re- 
main liable, unlefs he pay fifteen fliillings under the fub- 
fequent commiflion. He admits that he cannot now pay 
fifteen (hillings. The former commifllions are not as if 
they had never cxifted-. Not only fales of goods, but 
even a bargain and fale of lands, would ftand good. ' 

Lord Mansfield, — ^There is nothing in this cafe. The 
only queftion is. Whether a fuperfedeas can make a thine 
not to have been done, which, in faft, has been done? [ 49 ] 
The defendant was ^/charged under the former commif- 
ConSy which is all that need be enquired about. But 
befides, the a£t lays, that if a bankrupt has compounded 
his debts, he muft pay fifteen fhillings under a fubfequent 
commiflHon of bankruptcy, in ord^r to proteft his future 
eflFe£ts. Here, the creditors had compounded^ if the former 
oankruptcies were to be confidered as never having exifted, 
for they accepted of the dividend in lieu of their whole 

WiLLEs, and Ashhurst, Jnßices^ of the fame opi- 

BuLLER, Jußicej — The bankrupt laws were made for 
the benefit o? the creditors, not of the bankrupt. 

Judgment for the plaintiflrl 

■ "White againfl SEALYand ^Others. *7tiiNo/. 

hnÖ£ defendants had entered into a bond, in the penal JJJ'|ff^^|.''^ '\ 
-■• fum of 600/. conditioned, inter alia^ for the payment men" of^rcml^" 
of a yearly rent of 570/. by another perfon. The rent the bond is 
being in arrear, the bond was put in fuit, and judgment only a lecurity 
by default obtai/ied againft the defendant. Afterwards, J,^ J|^^ **JJ|!^""\ 
another aftion was brought on the fame bond, and a fe^ ^ ^* 

cond judgment entered up. Then, a third a6Vion was 
commenced, in bar of, which the defendants pleaded the 
£rft judgment^ and then obtained a rule to fliew caufc 
Vol- I. E , * why 

CASES IN Michaelmas term 

why the fecond ihould not be fet aftde, with cofts ; and 

why, upon payment of the penalty and cofts of the firft 

Wh^te aöion, the plaintiff Ihould not acknowledge fatisfaftion, 
again ft on record. They ftated, in the affidavit on which the 
Sealy. rule was granted, that they had not pleaded the firft 
judgment in bar to the fecond aftion by a miftake they 
had fallen into, in confidering the fecond declaration when 
delivered as being the fame, and in the fame aft ion, 
with the firft, and only delivered to cure a miftake in the 
indorfement on the other. The queftions were ; i . Whe- 
ther the bond, in this cafe, was a ftanding fecurity for all 
the payments of rent during the term (which was for 
twenty-one years), or only to the amount of the penal 
fum ? 2. Whether, upon the equity of the cafe, and the 
affidavit on the part of the plaintiff, it did not appear, that 
it was the irttention of the parties, that the fureties öiould 
be bound for the rent during the whole term, fo aj to 
entitle the plaintiff to retain the advantage he had got by 
the miftake of the defendant ? 

The Solicitor General (hewed caufe. — Dunning and Bower, 
in fupport of the rule, 
t 50 ;J Bui.LER, Jiiflicey at firft, was ftrongly of opinion on 

the firft point, (which had not been made at the bar) 
that, by the ftatute of 8 Ü* 9 JF. 3. r. 11. an obligee of 
fuch a bond ^s this, might, from time to time, affign 
breaches, and recover his damages, and have execution for 
them, though they amounted to more than the penalty in 
the bond, and that the jmlgment would ftill remain as a 
fecurity for all fubfequent breaches. 

AsHHURST, Jujiicey — ^That would be very equitable as 
againft the leflee, but extremely hard on fureties, who only 
mean to bind themfelves to the extent of the penalty. 

Lord Mansfield, — i. As the bond is conceived, arc the 
defendants liable for more than the whole f>cnalty ? I 
think not, upon the true conftruöion of the ftatute of 
William^ the meaning of which only was, that a plaintiff 
fhould not, upon every breach, be obliged to go into a 
court of equity to have iffues diredled of quantum damnific 
catus. 2. Is there any thing. collateral that fhould make 
the fureties liable for more ? I fee nothing in the faös of 
the tranfaäion, which ought to have that cffeft. The flip 
in not pleading the firft judgment to the fecond aäion, 
only effefts the cofts of that aöion, and not the merits. 

BuLLER, Jußicdf now declared himfclf to be of the 
fame opinion concerning the conftru£tion of the fta«* 

tute [f 2o> 


tt io] S. P. Brangwin v. Perrotf [ty\ But> viiULordLonßaley. Church, 
C. B.E. 18 Gi9, 3. t BUikft. 1 190. Bi R. E. 2% Gwly 2 Term Ref. 388. 

ÖJ TÖE NlNEtEtmH Year of GfiOROfc IIL 

The rule made abfolnte, but without cods 5 fome cir- 
cumftances appearing which fatisfied the court, that tlie ^__ _ 
leflbr was mifled by the lurctics, with rcfpedl to the fmall- WhTtb 
Äcfs of the penakjr, againll 

• Sealy. 

boB, Leflee of Simpson, agaifiß Butcher. J^^f^'^'*^"^ 

yERVAISE Newton f being feifed in fee of the lands A leafc void 
in qucftion, devifed them to Sir Michatl Newton, for "K^.*"^ * ^' 
life, remainder to truftces to preferve contingent remain- JJJ^J," cannot 
dtrs, remainder to the firft and other fons of Sir Michael be fet up by 
Newton in taikftiale, remainder to the leflbr of the plain- h»« accept- 
tiff for life, remainder to bis firft and other fons in tail- *"^*/.^i '^?"^* 
male, with divers remainders over. Jervaiß Nenvton died ^^e tcnantlo 
in 1728; Sir Michael Newton being Icifcd of the lands in make im- 
T^ueflion by virtue of the devife aforefaid, by indenture of provcmcms, 
leafe dated the 2d of September 1731, in confideration * of "^^'^ *""".• 
ip2 /. demifed them to the defendant, for the term of 99 ^^^^^^l^* ^^ 
years, if the defendant, John Shirbume, and William Laf- *[ c'l 1 
iury, or either of them, fhould fo long live. Sir Michael 
Newton died in 1743, without ifliie male; and, on his 
death, the leflbr of the plaintiff entered on the premifes, 
and was feifed thereof for his life* John Shirburne died in 
1767. And afterwards the leffor ot the plaintiff, by in- 
denture of leafe dated the 3cth of June 1767, for the con- 
Gderation of 30 /. demifed the lands in queition to the de* 
fcndant, from and after the deaths of the defendant, and 
William La/bury^ for the term of 99 years, if John Griffin 
fiiould fo long live. Some time afterwards, William Laf* 
hury died, and, thereupon, the leffor of the plaintiff, by 
indenture of leafe dated the 29th of November 1769, in 
coniideration of the fum of 30 /» denüifed the lands in quef- 
tion to the defendant^ for another term of 99 years, from 
and after the deaths of the defendant and John Grijffiny if 
William Wright fhould fo long live. The defendant paid 
his rent to Sir Michael Neiuton during his life, and after 
his death to the leffor of the plaintiff until fcVeral year« 
after the granting of the laft-mentioned leafc, and alfo paid 
e hcriot to the leflbr of the plaintifl', on the death of John 
Shirbume, and another heriot on the death of William Laß- 
tury. The leffor of the plaintiff from time to time fum- 
moned the defendant, as his tenant to do fuit and fervice 
at his manor court« The defendant, after the death of Sir 
Michael Ne^iuton, laid out confiderable futns of money, irt 
improving the lands. The leflbr of the plaintiff never quef- 
tioned the validity of the leafe granted by Sir Michael Neav^ 
tm^ and the defendant had no notice of the defeft of title 
of Sir Michael Ne%vton to grant the leafe, not being ap- 

£ a priced 


^778« prized pf any fuch defeft, till about four years beforti 

\_ - - I bringmg the prefent ejeftment, when, an objeöion being 

Doe made by the remainder-man to the power of Sir Michael 

againfl Newton^ and of the leflbr of the plaintiff, of granting leafes 
BuTCH£R. for a longer time than thcit own lives refpeftively, the 
leffor of the plaintiff offered the defendant to pay him back 
the confideration-money of the refpedlive leafes granted by 
him, provided the defendant would account with him fof 
the rents and profits received by the defendant from the 
time of the death of Sir Michael Newton, dedufting what 
he had laid out on improvenunts ; but the defendant re- 
fufmg to accede to this propofai, the leffor of the plaintiff 
gave him proper notice to quit the pfemifes before bringing 
the cje£lment. Reverfion^ry leafes of the fame nature as 
thofe above dated, are ufually made in the Weßern counties 

t .5-^ ] ^^ £/;^/«W, to commence not only from the deaths of 
the perfons named in the leafe in pofleffion, but alfo 
from tlic end, or other fooner determination, of tlie leafe. 
in poffeffion. 

On a fpecial cafe from the Weßern circuit, ftating the 
fafts as above fet forth, the queftion was, Whether the 
original leafe to the defendant was affirmed by any of the 
aös of the leffor of the plaintiff^ after the death ot the tc* 
nant for life ? 

On Tuefdajy the 24th of Novembery this queftion came 
on to be argued, by Gould for the plaintiff, and Heathy 
Serjeant, for the defendant. 

For the plaintiff it was contended, that, the leafe having 
become abfolutely void on the death of Sir Michael Ne^vton^ 
none of tlie afts done by the leffor of the plaintiff could 
rc-eflublifli it. That this could not have been donei even 
by the mofl formal deed of confirmation, which could only 
operate on a voidable leafe, not on one abfolutely void« 
For tliis, a late cafe of Goodright v. Huwphrys^ in the £x- 
chequer^ was relied on, as direftly in point [14]. Although 


[14] Goodright i Lcjfee of Wynnes v. leaving Janet her elded daughter, te- 
Hum^brys came on, in the court of Ex- nant in tail ; who fuffercd a recovery, 
chequer, in the form of a fpecial cafe, and afterwards married the leffor of 
wliich dated ; That, Lady Bulke- the plaintiff. — That Edivard Williamf 
ley, having been tenant for hfe, with received the rent referved durJtig his 
tcmAinders over in tail to her firA and life. — That, after his death, his wi- 
other Tons and daughters, fucccffxvcly, dow, in like manner, received the 
and with power to her to leafe for 21 rent, and granted receipts, — That the 
years in poffefiion, and not in revcr- daughter alfo received the rent till her 
Jion, intermarried with Ed-ward PHI- marriage, and her hufband for feme 
liams, who, without her concurrence, time after the marriage, and that a 
dcmifed to the defendant, to hold from counterpart of the lealie was found in 
the teaft of the Annunciation then next his poffeflion.— The court were of opt- 
to come, for 99 years, determinable nion, that tne leafe was void, and gave 
©n three lives.-^That the leffor died, judgment for the plaintiff, 
and afterwarcU Lady Bulkeley died» 


the receipts of rcnty in the prefent cafe, have been for a 1 778. 
Jonger time than in the other, that circumftance can make ^_ _ _ ^ 
no difference. The revcrfionary leafes cannot affe£t the Doe 
title of the leflbr of the plaintiff to recover, becaufe the agaioft 
event on which the firft of them is to commence, has not Butcheä* 
happened, for it is to take effeft, not on the determina- 
tion of the former, but after the death of the defendant j 
Re^or of Chedduigion^^ Cafe {q)y 2 FiizL Abr. 161- b^ 
I Inf. 308. 

For the defendant, it was faid, that the diftinftion in 
the books between void and voidable was founded on mif^ 
taken rcafoning. Upon fimilar reafoi)ing, it was formerly 
held, that a leafe made to commenceyrc;;; the day of the date 
muft be a reverfionary leafe, and tlierefore void under a [ S3 2 
power to grant only leafes in poffeffion ; but, in a late de- 
cifion of this court, good fenfe prevailed over authorityi 
and it was determined, that fuch a leafe might be confi-» . 
dered as not excluding the day of the date, if fuch appeared 
to have been the intention of the parties [15]. In like 
manner, the old notion, that there could not be crofs re-^ 
maindcrs by implication between more than two, has been 
exploded, as contrary to found reafoning [16]. The court 
lUways- inclines to fupport, rather than deftroy, grants and 


(f) M, 40 y 41 EUz, B. R. \ Co\ den, v. Burrjille, E. 13 do. 3. Knglt 

153. v. Lord Cadogan, Hol/ord, and others ^ 

[15] P ugh y. The Duke of Leeds and (being a cafe out of Chancery J E. 

f mother, M. 18 Geo. 3. an ÜTue out of \\Gco. 3. [f 23], Perry and another v. 

Chancery, tried at 5i6m<^«r>'/ and a White, LeJJec 0/' Bertie, (which was a 

cafe referved, which ftated a power to writ of error from B. Ireland) E^ 

piwt leafes in poffeffion only, and not 18 Geo. 3. [f 24], and Phiphard v. 

in rcvcrfion. The leafe in queflion Mansfield, E. iS Geo. 3. [f 25], were 

was to commence *' fron> the day of all cafes in this court, on crofs remain* 

•• the date tliereof"— Lord Mansfield, ders, by implication, between more 

in a long argument, in which he dif- than two ; and the general principle 

cuffed minutely all the cafes on the fub- eftabliftied by them all, is, that, be 

jcö, ddivered his opinion, that the tween two, the prcfumpiion is in fa- 

ivords *« from the day of the date" vour of, between more than two, a-? 

might be conllrued to include that day, gainll crofs remainders : but that, by 

and that the leafe was good ; and J/- neceffary implication, they may b» 

ro*, fFilles, and Ajhhurß, Jußices, con- railed between more than two, as wcU 

purred [f 22]. as by exprefs words. 

[i6J The z^t%QiDoe,LeJfee of Bur- 

[f 22] Since reported, Co^p. • [f 24] Since reported, Co^tjp, 777. 
714. [r^] Lt ^5] ^"^^^ reported, Co^-ixjf. 797. 

[t *iJ ?ince i-eported, Co^p. 31. 

[1^] For an inflance where " from^* was held to be exclufive, *vide Rex v. 
Gamlingay, B. R, H. 30 Geo. 3. 3 Term. Rep. 513. The 4 days allowed in 
ß. R. for pleading in abatement, arc both inclufive. Jennings v. Webb, B. R. T^ 
26 Geo. 3. I Term Rep^ 277. 








Icafcs. The leffor of the plaintiff, in this cafe, will not be 
fuffcred to fay he was ignorant of the defe£b in Sir Michaet 
Newton's power to grant leafes, becaufe, as he took under 
the will, as well as Sir Michaely he mud be prefumed ta 
have known the limitations contained in it. 

Lord MANSFmLD, on the argument, feemed inclined to. 
fupport the leafe. He faid, there could be no confirmation 
of a thing abfolutely void [f 21], but that the afts of the 
leflbr of the plaintiff might operate as a new grant [17]. 
However he defired it might ftand over 5 and now, juft 
before therifing of the court, his lordfhip delivered the opi- 
nion of the court, very fliortly, in favour of the leflbr of 
the pLintiff. He faid, there did not appear to have been 
any intention, either to confirm the old Icafe, or to grant 
a new one. Both the leffor of the plaintiff and the defcnd-v 
ant had proceeded under a miftakc, and had fuppofed the 
original leafe to be good. 

The pößea to be delivered to the plaintiff [f 26]^ 

ft 21] Co. LhtL 295. b. 
17] In the cafe ot Goodrigbt, Leffee 
ef Carter^ v. Strathatif which was de- 
termined in this coutrt, in Af. 15 Geo, 3 . 
but was not cited on the prefent occa- 
iion» a mortgage, in the form of a 
kafca was granted, of a feme covert's 
cftatc, by the hufband and wife. After 
the hufband's death, the deed being in 
the hands of the mortgagee, the widow 
had diredled the tenants m poffeflion to 
attorn to the mortgagee, had fettled 
with him for the balance of the rents, 
ftilin^ him mortgagee, and had not 
quefhoned his pofTefTion for a confider- 
able number of years. Lord Mansfield 
f«d, in delivering the judgment of the 
court, that they werö all of opinion, 
that the conveyance, in this cafe, 
though in the form of a leafe, was, in 
fubüance« a mortgage, and, not being 

within the reaf<|n for which leafes by a 
feme covert are held to be only void- 
able, was abfolutely void, on the dcacl\ 
of the hufband ; but that the a£ls done 
by the widow, the deed b^ing in pof- 
fcflion of the mortgagee, were tanta- 
mount to a re-delivery, which, with- 
out a re- execution, is equivalent to a 
new grant. The authorities on which 
he faid the court relied were, Perkins^ 
feii, 154, and the year-books there 
cited. Co. Litt, 36. a. z Jtoll, Abr^ 
26. — The queflion came before the 
court, on amotion for a new trial [t27]. 
[t 26] Jenkins, Leffee of Tate, v. 
Churchy B. R.M, 17 Qeo. 3. Cowp. 
482. S, P. 9ut ^. whether the de- 
fendant, in the prefent cafe, might not 
have been relieved in equity? Fide 
Stiles v. Confer. Cancy 3 March 17481. 
3 Aik, 6<^z, 

tt 27] Since reported. Cow/. 20^. 

The End of Michaelmas Term 19 Georgi III^ 




Court of KING'S BENCH, 

I N 

Hilary Term, 

In, the Nineteenth Year of the Reign of George III, 


MiLFORD againß Mayor. Tucfday,i6ih 

ON a rule to (hew caufe why the defendant fliould not if a bill of 
be difcharged. • The ground was, that by the affi- exchange is 
davit on which he was held to bail, it was fworn "®^ ^^^^^^Ix 
<« that he was indebted to the plaintiff as indorfee of a bill f." ^„J°" T^^ 
<< of exchange, but that the bill in fact was not yet due. again ft the 
The defendant was the drawer of the bill, and the drawee drawer, be- 
had refufed to accept it. ^^^^ *^ *!""• 

BuuLER, Jtijice,— It is fettled, that, if a bill of exchange ^^j" '^'\ 
is not accepted, an a£lion on . the bill will lie immediately able, 
againft the drawer, although the time of payment ia not 
come. This I remember to have been determined in the 
year 1765, in a caufe in which Sir Fletcher Norton was 
counfel for the defendant (0). The reafon is this, as Lord 
Mansfield faid in that cafe, that what the drawer had un» 
dertaken has not been performed, the drawee not having 
given him the credit which was the ground of the contrad. 
There have been a great many aftions of the fame fort, 
lince that time. 

WiLj-Es, and Ashhurst, Jufticesj of the fame opi- 
nion [f 28]. 

Lord Mansfiex^d abfent« 

The rule difcharged, , 

(a) Bright v. Furrier ^ Laiu of Ni, arrefted, he was difcharged upon mo- 

Fri. 269. Ed. 1775. ^^^^^ ^^ ^^^ ground that it was a debt 

[t 28] In Macarty v. Barron, contradted before the bankruptcy, and 

fi. R, £. 6 Geo. z. 2 Str. 949, the de- at the very inftant when the bills were 

fendant having drawn bills on Sfa/H, drawn ; 2 Str, 949 ; and, more fully 

which were afterwards protelled for and accurately, from a note fupplied 

Bon-acccptance, became a bankrupt hy ff'ilmotf Chief Jußice, m iWilfi'j. 
before they were rctornecl, and, being 




Tuefday, i6th 

On a provifo 
in a Duchy- 
leafe,— that 
it (hall be en- 
rolled with 
the auditoFi— ' 
the certifi- 
cate of the 
auditor on the 
margin is 
AifRcient evi- 
dence of the 
Under- lea fcs 
aie not within 
provifoes con- 
cerning aflign- 



KiNNERSLEY again/I Orpe and Others* 

IN an aftion of trcfpafs, for fifhing in the plaintifFa 
fifhcry, in part of the river Dovcy which was tried, at 
the laft aflizcs, at Stafford^ before Skynner, Chief Barorty 
a verdicl was found for tlie plaintiff, upon which a rule 
was obtained to {hew caufe why there ihould not be a new 
trial. The plaintiff had declared upon a feveral fi{hery> but 
was not owner of the foii, * and the defendants having 
pleaded the general iflue, and alfo feveral juitifications, as 
fervants to IViHiam Cottotty the firft plea in which Cctton. 
was mentioned had called him the /aid WiUiarn Cottony al- 
though his name had not before appeared on the record. 
At the trial, the plaintifPs couniel were unwilling to rilk 
the cafe on the point, which feems flill not quite fett;led. 
whether a perfon who has an cxclufive right of fifliery, but 
without the foil, can declare on a feveral (ifliery. The de- 
fendants, on the other hand, could not have availed them- 
felves of their fpecial pleas, on account of the miftake jult 
mentioned. It was, therefore, agreed that the caufe ihould 
be tried, as if there had been a count on a free fifhery, and 
as if the pleas had been amended ; and that, next term, the 
pleadings ihould be fo amended by confent. The plaintifF 
derived his title, under a leafe dated in 1753, from the 
Duchy of Lancaßcry in which there was a provifo, that the 
leafe, and all alTignments thereof, ihould be enrolled within 
three months from the date, with the auditor of the Duchy, 
or otherwife fhould become void. The original Icflee made 
a leafe, in 1777, to the plaintifF, for a term fomewhat lefs 
than» what remained unexpired of the original term. To 
prove the enrollment of the leafe of 1753, ^ memoran- 
dum, or certificate, on the margin of the leafe, was read, 
figned " Peregrine Fury^ Auditor." No evidence of the 
enrollment of the fecond leafe of 1777 was offered. The 
plaintiff had paid the rent to the Duchy, up to the time of 
the trial. 

Counfel for the plaintifF, Adair^ Serjeant, Howcrth, and 
CowpcTy (and, at the trial, Kenyoti.) — For the defendants,' 
Bearcrcfty Dimmngy and Bower, 

The application for a new trial, was made on four 
grounds, viz. i. Becaufe the vcrdi£l was againft the 
weight of evidence produced at the trial. 2. Becaufe the 
defendants had been furprized by evidence, which th^y now 
offered aihdavits to contradict. 3. Becaufe there was not 
legal evidence of the enrollment of the firil leafe, ior 
that an office-copy of the enrollment ought to have been 
produced. 4. Becaufe the fecond leafe was an affignment» 
and not having been enrolled was void« 



Lord Mansfield abfent. ^77Q« 

The court immediately difpofed of the two firft grounds. ^ _ _ j 
They faid it did not appear from the report, that the ver- Kinkers- 
ii'itt was againft the weight of evidence. • No furprize was ley againil 
ftated by the judge, and the evidence now offered to be laid 0*P£.. - 
before the court by affidavit, might hav£ been produced at 
the trial. On the third and fourth point, tlie three judges 
prcfent delivered their opinions to the following efFeft. 

Will ES, Jußicey — ^The memorandum on the margin Is 
the certificate of the proper officer^ not of a private perfon, 
^ has been cpntended at the bar. I caniiot diftinguifh be- 
tween this cafe, and that of a bargain and fale, where the 
indorfeme^it pn the back of the deed by the proper officer 
is always received as evidence of the enrollment. This cafe 
too is fortified by ^he circumftance of long pofleffion under 
the leafe. At any rate, third pcrfons cannot avail therfl- 
fclves of a forfeiture pf this fort ; but I think the en- 
rollment is fufficiently^ pro^d if it were againft the grantor, 
Befides, the leafe is admitted, for it is ftated in the plead- 
ings and not travcrfcd [i]. The cafe of Critfoe^ Lejfee of ' 
' BUnco€\ V. Bugby (^), which has been cited at the bar, is • 

conclufive to prove that the fecond leafe, being for a lliorter . 
time than what remained of the firft t-erm, is not an. affign-*, . 
jneht, but an under-leafe. . 

'AsHHURST, Jußicfy — I am of the fame opinion. The 
fafe in the Common Pleas is decifive of the .poin,t as to the *^ 
affigi^ipent [(ür]. And I think the memorandum is fuffi- - 
cient evidence of the enrollment. For what other purpofq 
was it made ? But, on the other ground, I do not think itf 
competent to a third perfon, a wrong-doer, to take advan- 
tage of a defeft which the grantor has waved ^ for the rent 
lias been received, up to this time [f 29 J. 


[1] Infra 58. Note [i]. for a term which fell a day ßiort of the 

\b) T. C.ß. II Geo. 3. 3 ffV/. Z34. expiration of the original leafe, was 

^cc reported in 2 Blackß. 766. held to be within the meaning of- the 

f Ö^J ^^ ^^' ^^ ^^^ words were, provifo. Roe, Lcß'ce of Gregfcn, v. Äät- 

that the leffce, ** his executors or ad- ri/on, B. R, £, 2S' Geo. 3. 2 T^jm 

miniftrators, Ihall not, at any time or kef. 425. 

times during this demife, aßgn, tranf- \^\ 29] It fhould feem that the ac- 

y>r, or /et over, or othcrwile do or put ceptance of the rent by the grantor, 

away this prefent indenture of demife, would not have been a waver of tlie 

or the prcmifes hereby demilcd, or forfeiture in this cali^, as between him 

any part thereof." But where the words and the grantee. — «* It is to be ob- 

cf a provifo were, that the leafe (hould " ferved, where the eftate or leafe is, 

become void, in cafe the lefTee, his ex- " if/o faao, 'void, by the condition or 

ccutors or adminillrators, fliall, at and *' limitation, no accepunce of rent 

during the faid term, fet, let, or alügn *' afterwards can make it to have a 

over, the faid hereby -demifed mefluagc •* continuance ; otherwife it is of an 

or dwelling-houfe, or any part thereof, " eftate or leafe *voiäabU by entry ;"— ^ 

i demife ^ the l^fFee's adminiilracrix^ Co. LittU 215. «. ^ cites En<wning v. 




1 770» BuLLER, Jußicey I think the Icafe, with the certificate 

, ' '^* , under the hand of its own officer, would bind the crown 
K I N N B R s- itfclf. The provijo is—" That it (hall be enrolled with the 
iBT againft " auditor.*' I camiot diftinguifh this cafe from that of a bar- 
pR?E. gain and fale. The aft of parliament (Ä) in that cafe, doc» 

not provide tliat tjie indorfement by the officer {hall be evi- 
dence of the enrollment, and yet it is conftantly admitted. 
Befides, the leafe is dated in the replication, and, there- 
^rc, (although there is a proteßando againft it by the de- 
fendants,) it is admitted as to this caufe [i]. On the 
other point, the cafe in the Common Pleas is a direct 
jiuthority (r ), 

The rule difcharged, 

fiowii. 131, where it.was fo laid down, (0 ^- ^^ there was a plea of not 
in xr^Mmcnuhy Ram/ey, ihi J, 136. Bqtit guihy, which put the plsontifFon prov, 
was k) refol ved in Pennant's Caje B, R . T. ing all his tide. 

58 EL 3 Co, 64. L ^ in Finch v. Throg^ 
pforton^ Scacc. jx £liz. Cro. £1, Z20. Gfi 

(c) Fide Holford V. H(Ucb, E. 19 
'o- 3» I^fra, 174. 

Friday. 19th Chandler ßgainß ROBERTS ancj Another^ 
"*' Bail of White. 

To a plea to 
a fci. fa. 
agiinft bally 
that the prin- 
cipal died be- 
fore the re- 
turn of any 
ca. fa. a re- 
plication dat- 
ing a particu- 
lar ca. fa. and 
that the prin- 
cipal was alive 
at the rehim 
of that ca. fa. 
ought to con- 
clude to the 


A Scire facias on a recognizance of bail. — ^The defendantai 
-^^ pleads that tlie principal, before the iffuing of the faict 
writ of fci re facias y and before the return of any capias ai 
fatisfaciend{imy to wit^ on the firft day of May 1778, at 
Weßminßer aforefaid, died. Replication — ^That the feveral 
promifcs and undertakings mentioned in the faid declara- 
tion whereon the ji\dgment aforefaid was recovered, were^ 
in the f<iid declaration, alleged to be made in Middlefexy 
and that, after the recovery of the (aid judgment in the 
faid writ of fcire facias mentioned, againft the faid John, 
White y and before the fuing forth the faid writ oi fcire facias ^ 
to wit, on the 6th day of May^ in the eighteenth year of 
the reign of our I-»ord the now King, the plaintiff fued and, 
profecuted out of the court of our Lord the now King, 
before the King himfelf, the faid court then and ftill being 
held at Wcßminßer in the county of Middhfexy a certain 
writ of our faid Lord the now King, of ctipias ad fatisfa^ 
ciendumy of and upon the faid judgment, direfted to the 
then (lierifF of Middleß^y by which faid writ, our iaid 
Lord the King commanded the faid then (heriff of Middle^ 
fexy that he fhould take the faid Johny if he (hould be 
found in his bailiwick, and him fafely keep, fo that he 
might have his body before our faid Lord the King at Weß-- 
tninßery on IVednefday ncxtj, after onq mondx from tlic day 


pf Eafiery then next coming, to fatisfy the faid plaintiff, I770« 
the faid 30/. the damages, cofts, and charges aforefaid, in y j 

form aforefaid recovered, and that the faid then flieriff Chandlbk. 
ihould have there then that writ, which faid writ, after- Jgainft 
wards, and before the return thereof, to wit, on the loth Rqb^rt»^ 
day of Map in the eighteenth year aforefaid, at Weßmin^, 
Jler aforefaid, was delivered to Robtrt Peclham and Rich^ 
ard Clarkey fo being flieriff of Middiefex aforefaid, to be 
executed in due form of law, at which day, before the faid 
Lord the King at Weßminßer^ came the. faid plaintiff, in 
his proper perfon| and the aforefaid then flieriff of Middle^ 
fexj to wit, the faid Robert Peckham and Richard Clarke^ 
returned on the faid writ, to our Lord the King at Weß^ 
tn'inßer aforefaid, that the faid John was not found in ni& 
bailiwick, as hy the faid writ^ and the return thereof^ duly 
filed and remaining of record in the faid court of our faid 
Lord the now King, before the King himfelf at Weßminßer 
aforefaid, morefuUy appears ; and the faid plaintiff further 
fays, that the faia %ä«, at the refpeftive times of the 
fuing out of the ^ faid writ of capias ad fatisfaciendunty and 
of the return, and of filing the fame, %vßs and füll is livings 
and in full life, to wit, at Wcßminfi^ aforefaid, and this he 
is ready to verify y wherefore he prays judgment, Ü*r. Ta 
this replication, the defendants demur fpecially, <* becaufe 
^* the faid replication concludes v^ith a vcrißcationy and not 
♦* to the country,^* 

Morgany for the defendant, admitted, that this had 
been the ufual form, till 1771, but he relied on the cafe of 
father v. Cormichy Bail of Col(inSy T, 1 1 Geo. 3. and Brian 
V. Thorny Bail of Bofsy M. 14 Geo* 3. both in this court, 
;md in both of which the replication having concluded with 
a verification, and having been demurred to, the court re-« 
commended to the plaintiff's counfel to move for leave to 
amend. He alfo cited Hanna v. Brißonvy Bail of Reillyy H* 
1 7 Geo. 3.^ in this court, where the replication having con- 
cluded to the country, upon a demurrer, there was judg- 
ment for the plaintiff (without argument), and a writ of 
error brought, but not proceeded on. He faid, he fup- 
pofed there would be three points made in fupport of the 
verification in the replication, — i. That new matter had 
been introduced, which the defendant ought to have an 
opportunity of anfwering.— 2. That matter of record, viz* 
the writ, was i^ated, which could not be tried by a jury, 
and yet a conclufion to the country v^ould have put that [ 60 3 
in iffue.— 3. That it contained feveral diftin£l faäs. As 
the firft, he contended that the new matter was the, only in- 
ducement which could not be traverfed. * That the replica- 
tion denied the whole plea, and, therefore, ought to con- 
clude to the country. That, if it did not, it was bad in 
j^ubfUncc} 5 Qom. Dig. 96« 2 Leo. 8^. d Co. 67* Latch^ 

«a Cases in Hilary term 

^770« '^^' ^^^^^' ^9' 7^* ^''^' J?^* 5^®^* -^^ *° ^^^ fecond, he 
^ - J faid that the reafons on which records were not to be tried 

pHANDLKR ^Y ^^^ country did not apply to this cafe 5 for that this was 
againft Hot like the cafe of a folcmn judgment pleaded. That the 
Jlo^ERTs. queftion here was merely matter of fa£l relative to a parti- 
cular period of time. That, if the defendant had denied 
the writ, it would have been a departure ; 5 Com. Dlgeß, 
89. Cro. Jew. 588. Ray%tt. 94. I &id. 1 80. 2 RoU^ 692. 
2 Sauttdtrs 84. Vmcent v. Aitwood^ 10 Mod. 256. On 
the third point he cited Robin/on v. Raley^ i Burr. 3 1 6. 

Woody for the plaintiff, infifted^ that the replication was 
in the ufual form, and agreeable to the rules of pleading, 
and that, in the three in (lances of fimilar cafes which Mor^ 
ran had cited, there had been no decifion of the court. 
Lord Mansfield recommended to Morgan to move for 
I leave to withdraw Ixis demurrer , which was granted with- 

out cofts. 

Ash HURST, Jußtce^'^Ax is proper that it fhould be 
known, to avoid future inconvenience, that the ground 
upon which the court determines is, the introdudion of 
new matter, in which cafe, the conclufion flmuid alwaya 
be an averment, in or4er that the party may have an op-i 
portunity of anfwering it. 

BuLLER, Jußice^ — It is admitted that, till 1771, this 
was thought the proper form, and there has yet been no. 
decifion to the contrary. In pleading, via trita via tuta. 
It always was the rule, that two aflSrmatives cannot make 
an iflue; i Leo. 78. 39 H. 6. 49. 32 H. 6. 23. In Ma^, 
then V-. Cormichy Brian v. Tl^rn^ and Hanno v. Brißow^ 
the replication was in the negative — " That the defendant 
•* did not die," l^c. — \ and thofe cafes were attempts to 
alter the eftablifhed form. It is alfo an eilablifhed rule, that, 
wherever new matter is introduced, the pleading muft con- 
clude with an aveunent ; Carth. 337. Moore 286. 3 Leo. 
16^. I Lutwyche loi. i Saund. 103. The cafe oi File^ 
ivood V. Poppleweilj 2 Wilf. 65. is exaftly in point, and 
Qarth. 4. fliews that the particular writ muft be ftated in 
the replication. The defendants here might have had ei-. 
ther of two defences ; nul tiel record i or, that the principal 
t (f I ] died before the return of the capias ad fatisfaciendum fet 
forth in the replication. If the plaintiff had concluded to 
the country^ and the defendants had only meant to make 
ufe of the firft of thofe defences, an ifTue would have been 
fent down, without any fadi for a jury to try. In the cafe 
in 10 Modern the writ was admitted* The account of that 
cafe, is .but a loofe note ; the book is of little autliority ; 
it is not in any other reporter, and is there ftated only as 
the argument of counfel. If the cafes referred to in it ap- 
plied, then that cafe was not applicable to the prefent. If 
they aid not, it was decided without reafon or authority^ 



This is the ancient form of replications, and while it is ad- 
hered to, no difficulties will arife [(Ö*]. 

[l^] S. P. Henderßmy. Withy ^ aP, Bail of Ö'Bryerr, B. R. T. 
^8 Geo. y 2 Term Rep. 576. 



Ward againß Höneywooö. 

T tPON a writ of .error from the Marßalfea couit, the 
^ cafe was this : An aöion had been brought upon a 
promiiTory note, which was made payable on the 28th of 
Aprilj and, if three days of grace were to be allowed, it 
did not become due till the firil of May. The plaint was 
intituled of the 24th of Aprils and a verdifl: having been 
iound, and judgment given for the plaintiff, it was alFigned 
lor error on the firft count, that it appeared upon tlie re- 
cord, that there was no caufe of aftion at the time of the 
comnjencementof the fuit. 

Baldwin^ for the plaintiff in error, contended, that this 
was a defeft not curable by verdift, and cited Stafford v. 
Moore {d). 

Boltoti^ in fupport of the judgment, faid, that the objec- 
tion might have been taken advantage of below, for, though 
the plaint did not appear in the declaration, the defendant 
might have pleaded it in abatement, or craved oyer of it, 
and demurred ; but that the dcfeft was now cured by fomc 
of the ftatutes oi jeofail y either 2^ EL c. ^^ 16 55" 17 Car. 2. 
r. 8. or 5 Geo. i. c. 13, He relied on Hoif. 54. 5 Mod. 285. 
and I Leon. 302. and, particularly on the cafe of ASlo» v. 
Eels {e)f where, in an aßion of afTault, on a motion ia 
arreft of judgment, becaufe the time laid in the declaration 
was not yet come, the court faid that the jury mufl be fup- 
pofed to have given the damages for another trefpafs, and 
that it was the fame as if no time had been alleged. So 
here the court, he faid, ought to intend that the date of 
the note was a miftake, as ftated in the record, and 
that another note, due at a time confiflent with the com- 
menccment of the aftlon, had been given in evidence to 
the jury. He alfo infilled that the date of the plaint was 
a mere legal fiftion. That the capias fuppofes a previous 
plaint, but which in faft never exifts, and that the day of 
the telle of the capias was really the time when the a£lion 
had been commenced. That the practice of the court be- 
low warranted the judgment. 

Baldwin^ in reply, obferved, that, if the capias were to 
be confidered as the commencement of the aclion, ftill, as 




In the Mar- 
flialfea courf, 
the plaint is 
the commence« 
ment ot the 
a^ion. It li 
not fettled 
whether dayt 
of grace niuft 
be allowed on 


{J) B. R. E. I Geo. i. lo Idod. 311. (0 B- R- M. ilF.^. z Sali. 66x, 



again ft 



^ tkStS tN HILARY tEkM 

the note had to run, (including the three days ^f grace,) 
till the firft of May inchifive, the capias ought riot to havd 
been fued out till the 2d of May. 

Lord Mansfield abfcntw 

WiLLEs, Jußiccy — 'MXh cafe is certainly not within any^ 
of the ftatutes of jeiJalL Suppofing the capias did iflue the 
firft of May^ and that it was the commencement of the 
aftion, the debt was not then due, for the defendant had 
the whole day to pay it. 

AsHHURST, Jitßice^ — If the plaint were like a latiintj it 
might be taken out before the caufe of adion accrues. 
This has been determined with regard to latitats [f 3o]i 
But it appears, by the cafe of Savage v. Knight (/), (that 
cafe had been mentioned by Bolton^ J that the plaint, in arl 
inferior court, is conGdcred as the original [f Si]» We 
muft take the note to have been proved as laid, and that 
makes the difference between this, and the cafe of a tref* 
pafs, where the day is immaterial. 
C ^3 3 BuLLER, Jttßccy faid, he doubted, whether, by law^ 

three days ofgrace were to be allowed on promiflbry notes, 


[t 30] In Foßer v. Bonner, B. R. B. 
16 Geo, 3. Co*wp, 454, this was rc- 
Iblved upon folemn argument» 

The rule to coniidtr the bill» not 
the latitat^ as the commencement of 
the fuit, is fubjeft to fevcral exceptions. 
For infbmce ; where the defendant has 
pleaded, that one of the ftatutes of li- 
mitations» had attached ante exhihitionem 
hilla, the pluntiiF may reply a latitat, 
fued out of the preceding term, and 
the defendant may rejoin, that the la- 
titat was not in ^£1 fued out till the 
vacation after fuch preceding term, 
and after the expiration of the tiihe 
limited for bringing the aftion ; ^0^»- 
fon V. Smith, B, R. E. 33 Geo. «. 
2 Burr. 950. So> if the defendant has 
pleaded a tender before the exhibiting 
of the bill, the plaintiff may reply a 
iatitat previous to the tender, and the 
defendant may rejoin, that there was 
no caufe of action at the time when the 
latitat iiTucd ; Wood v. Newton, B. R. M. 
»o Geo. 2. I fTiJ/l 141. In like man- 
ner, when there is no fpecial memo- 
randum, in which cafe the bill, by 
£^on, h, in general, held to be of 
the firft day of the term, if the caufe of 
tJSJdpXi arote before the ürfk day of the 

term, it will be fufficient for the plain- 
tiff to fhew, in evidence, a latitat fued 
out after the caufe of action arofe; 
Morris v. Pugh, B. R. M, 2 Geo, 3. 
3 Burr, 1 241 . Pugh v. Martin, B* R, Hi. 
24 Geo, 3. In Prodger^s Q(^e,B, R, M, 
21 Car, 2, 1 Sid. 432. it had been 
held, where the demife in ejedment 
was laid of a date fubfequent to the 
firft day of the term, and* the declara- 
tion was generally of the term, that the 
plaintiff might ßicw in evidence, that 
the hill was, in faft, filed after the 
firft day of the term. 

(/) B, R, M, 29 Of 30 EL I Lee. 

[ t 3 1 ] In Leader v» Moxen, C, B, Mk 
14 Geo. 3. 2 Blackft, 924, ^25. it Was 
refolved, that, under the limitation of 
time for bringing a^ons againft com- 
miffioners for executing a paving adl> 
(and in the cafe of all other ftatutes of 
limitations,) it is enough to fhew a 
capias, which every body underftands 
to be now the commencement of a fuit 
in C. B. and that, though the plüntifil^ 
ftate in his declaration the fuing out of 
an original, the capias 15 fufficient vii* 
dence thereof« 


though, in praöice, it was ufually done (2) ; but that here 

it appeared on the record, that there was no caufc of ac- _ 

tion, for it had always been held that the plaint, in the in- Ward 

ferior court, is the original, and commencement of the aj^ainit 

aftion. That no fubftance is within any of the ftatutes Honey- 

%A jeofaUn WOOD. 

The judgment rcverfcd. 

[2] In Deflaux v. Heod (at GuiUhall mo.iths and three days. The evidence 

J752, Law c/Ni, Prt. 274. Ed. 1775.) was a promiflbry note payable at four 

Dettni/on, JulUce^ ruled, chat by law months from the date, and it was ob- 

there are not three days of grace on je^^ed by the Solicitor General for the 

promiiTory notes ; but the cafe is men- defendant, that this was a variance, 

tioned with a ^arre. The point, I But Lord Mansßeld obferving that in a 

believe, has never been fettled by a computation of intercft made by the 

folemn decifion. It occurred in a caufe defendant himfelf, and which was in 

of Lloyd y, SAkiti which was tried at evidence, the three days of grace were 

the üttings for MiddUf.x after M. 20 allowed, he thought this decifive a- 

Geo. 3. 30th Nov. betöre Lord MdAnf- gainft him, without determining the 

field. That was an adtion on the ftatutc general queftion. The cafe came on 

of ufury. The plauntifF declared on a afterwards in court (Vide infra E. 20 

contrad to forbear for four' calendar Geo, 3. p. 336.), but on another point. 

Bradford againß Foley and Others. ^^^^^^'^^ 

^HIS was a cafe fent from the court of Chancery^ for Under a de- 
^ the opinion of the Judges of this court, which itated, viic,— to the 
that Tempeft Hey, being feifed-of a confidcrable real and J-^^^'T/^* ^'^'* 
perfonal ellate, on the a6th of March 1762, made his maindasTn 
will, the material part of which was in the following tail to hi§ 
Words, — " I give and devife all and fingular my real eftates firft and other 
whatfocvcr, and whercfoever, to Richard Wright and Mi- fo"«» &c. by 
chaeiTrvey, and their heirs, in truft, in the firft place, to ^^"J^. but^if 
proteä and preferve the contingent remainders, herein he marntd 
and hereby created and limited, from being defeated and any pcrfon 
deftroyed, and then to and for the feveral ufes herein after- related to hit 
mentioned, that is to fay,. to the ufe of my fon Thomas fn^fu"ch «fe 
Hey (who now fpells his name Hay) for and ^during the to go over to 
term of his natural life, and from and after his deceafe, to the children 
the firft and every other fon, which he fliall have by any ^^ the tcfta- 
future wife, with v/hom he fhall afterwards intermarry, in |[]g/_t*|^J 
tail male, and for default of fuch iiTue male, to the ufe of event of the 
all and every the daughter and daughters of fuch future fon's marry - 
marriage, to liavc and to hold the fame, in cafe there ihall ^^% * Second 
happen to be more than one daughter, to them and their ^^^his'^firltis 
heirs, as tenants in common, and not as joint-tenants, not a condi- 
Provided always, and it is my full and exprefs intent and tion prcce- 

meaning, that if my faid fon (hall hereafter intermarry with dent ; 2nd, cm 

his de-ith 
' without iTiv- 
47ing again, the eftate veftt in the children of the teflator's brother, ar^d uo<% not 
wiccnd tQ the uiUtor*t hear at law. 


1 770, any woman who is atiy ways rebted in blood to Murtet 

t _ ■ Ayjbecomhe^ his now wife, that all and every the above 

ISradpord limited ufesi as far as the fame fliall relate to the iflue of 

again ft fuch future marriage, fliall utterly ceafe, determine, ancj 

Foley. be void, to all intents and purpofes> k being my lledfaft 
refolution, as far as the law enables me, to hinder that no 
perfon any ways of kin to.hcr in blood, or born or dcfcended 
from any fuch perfon, fliall inherit any part of my faid 
cfliatc, »nd, in fuch cafe^ notwithftanding there fliall be 
lawful iffue of my faid fon by fuch future marriage living 
at the time of his deceafe^ my will and mind is, that they 
nor cither of them fliall take any thing by and urider this 
iny will, but that the faid truftees fliall fl:and feifed of all 
and Angular the faid premifes, to the life of all arid every 
the child and children of my late brother John Hey de- 
ceafcd, which fliall be living at the time of my deceafe, to 
have and to hold the fame, if more than one child, to 
them and their heirs, fliare and fliare alike, as tenants in 
common, and not as joint-tenants, fuch parts or fliares 
thereof as ihall refpeöively belong to the daughters of my 
faid brother, to be to their fole and fcparate ufe, inde- 
pendent and cxclufive of any prefcnt or future hufl)and 
that they refpedlivcly have, or may hereafter have, and 
not fubjcd: to the debts or controul of any or either of 
them -, and, in cafe all and every of the faid children of 

» my faid brother fliall happen to die in my life-time, or 

after my death, without ifliie, then I hereby give and de- 
vife all and fingular my faid real cftate to my right heirs ; 
I mean fuch heirs only, as ihall be no ways related in 
blood, or claim any defcent from any perfon related iri 
blood to the faid Muriel Ayjhecomhc^ my faid fon's now 
wife ; all and every of whom I hereby utterly exclude 
from any right, title, or benefit from my real or perfonal 
cftate, in any Ihape whatfoever.'* — ^The teftator died in 
December 1763, and left Ti homos Hay^ his only fon, and 
heir at law. The truftees (who were alfo made executors) 
proved the will, and, by virtue tliercof, entered upon and 
poflefTcd themfelves of the real and perfonal cftates of the 
teftator. There were five children of John Hcy^ brother 
of the teftator j living at the time of the teftator's deaths 
viz, Alice tlie wife of Benjamin Pilkingtony Mary the wife 
of James Fletcher^ Jennet the wife of Thomas Crompton^ 
Tempeß Hey and John Hey. In December 176B, a com* 
milFion of bankruptcy was taken out againft Thomas Hay 
tlic fon of the tellator, and art aflignment executed of aÄ 

f 6 c ] his eliate and efFefts, to afCgnees, in truft for themfelves, 
and the reft of his creditors who Ihould. come in and prove 
their debts under the commiflion. Teifipeß Hey^ the fon of 
John Hey the teftator's brother, died a batchelor. John 
Hiy, the other fon of the teftator's brother, died fome time 
after hi^ brother Tempe^, Icaviög one only child> Thotnas 

8 Hey^ 


Hey^ an infant. Mary the wife of Jatnes Fletcher died I77Q. 

without iflue. Jennet the wife of Thomas Crompton died, ■ _ ^ 

leaving ilTue fTA^/WAf Crow//ö/i the younger. Muriel Ayfije- Bradford 

combe y the wife of Thomas Hay the tella tor's fon, died in again ft 

the h'fe-time of her hufband. Soon after her death, Tho* Folev, 

mas Hayy the fon of the teftator, alfo died without illuc, 

and without having married again ^ leaving Thomas Far r en 

Hey his heir at law. On the 3d of OBaher 1771, the faid 

Thomas Hay (fon of the teftator) made his will, and, as to 

what might become due to him in expcftancy or reverfion^ 

gave the fame to his executors therein after-named, for the 

ufes following, " Firft to pay his funeral expences, then 

his juft debts that he had contraöed, fmce the firft day of 

March 1769, as far as his efFefts might amount ; but if all 

his creditors were paid twenty fhillings in the pound, and 

there (liould be an overplus, after all the expences were 

difcharged, then he gave the fame to his niece Amelia 

Heydon ifor her own proper ufe," {5*r. The plaintiff claimed 

under Thomas^ the fon and heir at law of the teftator; 

the defendants, under the children of the teftator's brother, 

John Hey. The queftion for the opinion of the court 

was, ** Whether the children of John Hey the brother of 

the teftator had taKcn any, and what eftate in the cafe that 

had happened ?'* 

The cafe was argued, on Friday the 29th of January^ 
and this day, by Hood^ for the defendants, and Morris^ for 
the plaintift'. The court direfted Hood to begin. 

He contended, that the children of the teftator^s brother 
had taken eftates-tail, with crofs remainders, although tlie 
previous event, on which the devife to them was limited, 
had ne\'er happened, i . To (hew that words like thofe in 
the prefent cafe, were not to be conftrued as conftituting a 
condition precedent, but as words of limitation, he cited 
Jones v. Weßcomh (^), Gulliver v. IVicket (^), Page v. //«-v- 
Hvardj cited in that cafe (2), and i RolL Ahr. 835. 2. He 
faid the intention of the teftator was certainly tc^ exclude 
the children that his fon might have by his then wife, and 
yet, according to the argument which would be made ufc [ 6<J 3 
of for the plaintiffs, fuch children, if there had been any, 
muft have taken in the event that had happened. 

For the plaintiff, Morris infifted, that, if there was 
fuch a thing now in the law as a condition precedent, this 
was clearly one. That the cafes cited by Hood^ as well as 
others of the fame fort, viz. Avelyn v. Ward (i), Andrews 

V. Fulham 

Ig) M, 171 1. Free, an Chan. 316. (1) B. R. T. 3 Jnn. 2 SM. 570. 

I £q. Ca. 245. Piggot 176. 

{h) B. R. M. 19 Geo. 2. 1 Wil/. (i) Cane. 19th of March 1749. 

105. 1 Fe». 420. 

Vol. I. * F 


again It 


V. Fulham [3], and Statkam v. Bell [4], all went upon tli« 
idea of a double contingency, and that the only thing to 
prevent the fubfequent limitation from taking effeft in pof- 
fefTion was the intervention of the eftate limited firll. That 
thofe authorities were not now to be ihaken, but that they 
did not apply to this cafe. That, in every view, the old 
reverfion here muft have remained. In the other cafes, the 
contingency was annexed to the precedent, here to the 
fubfequent, eftate. He cited Arton v. Hare (/), and con- 
tended, as to intention, that it did not appear that the tef- 
tator had taken into confideration the event of his fon's hav- 
ing children by his then wife, and not marrying again. 

Lord Mansfield,— Nothing can be clearer than that the 
teftator meant that no child of Muriel A^ecomhe Ihould 
take in any event, and yet, according to Mr. Morr'iis ar- 
gument, fuch child (if there had been one) muft have 
taken. We will take time to confider of our certificate. 

The cafe was not afterwards mentioned in court. The 
certificate was in the following words : 

" We are of opinion that the children of John Hey, 
*< the brother of the teftator Tewpeß Hey^ took ellates tail, 
•• with crofs remainders. 



ix\i February 1779. W- H. ASHHURST. 


ing any child after the making of the 
will, his wife not having been enfient, 
and the daughter died before (he was 
21. The queftion was, whether the 
plaintiff, the teftator's heir at law, or 
the widow, who married Bell the de- 
fendant, (hould have the edate, in the 
event which had happened. The cer- 
tificate was in the following words : 
'* Having heard counfel and taken the 
*• cafe into confideration, we think it 
*' was tlie plain intention of the tcfta- 
'• tor, that, in cafe no fon fhould be 
*• born, and he (hould have no daugh- 
" ter who (hould Hve to attain the age 
" of 2 1 years, his wife (hould have the 
** whole eftate ; therefore, in the event 
** which has happened, we think Mary 
*' Bell took an eftate in fec-(implc 
" in the whole of the premifes id 
" queftion. 


May l6th, R. Jflon» 

1774. E, Wiliest 

IV, H. Ajhburfir 

(/) T. 37 £/. foph. 97. 

f3] J5. R, Cited 1 Vex,, 421. Jones 
V. Weft comb, Andren.vs v. Fulham, and 
Gulliver V. Wicketti were all cafes on 
the fame will. 

[4] St at ham V« Bell and others 
[f 32] was a cafe from the Court of 
Chancery, argued in this court, E. 
I4 Geo. 3. 26th April, by Kenycn for 
the plaintiff, and Davenport for the de- 
fendants. The fafts were as follows. — 
St at ham having an only ilhild, a daugh- 
ter, made his will, whereby, reciting 
that whereas his wife Mary Statham 
was then pregnant^ he devifed his 
eftate to his fon, if his wife (hould be 
delivered of a fon, when he (hould attain 
the age of 2 1 . If (lie (hould have a 
daughter, then he devifed one moiety of 
the eftate to his wife, and the other moie- 
r gl ty to his daughters, when they 
■• 7 J [hould attain their ages of 2 1 
years. Andif either of them (hould die 
before tbat time, then her (hare to the 
furvivor, and if both ftiould die undef 
aii then the other moiety to go to the 
wife. The teftator died without hav- 

[t 32] Since reported, Cowp. 40. 




OxLEY agabiß Bridge. 

^HE firft day of this term, the paper-book in this caufe 
•'- had been delivered to tfie defendant, containing the 
common replication to a Qiam plea of a judgment recovered; 
with a rule to return it on the Wedmfday following, 27th 
oF January. He returned it on the Thurfday before 
9 o'clock, having druck out the ipecial pleading, and fub- 
lUtuted the general iflue in it's place. The plaintiff refufed 
to receive it, unlefs the defendant would agree to deliver it 
as of Wt'dnefJay^ which he not confcnting to, the plaintiff 
figned judgment. 

On a rule to (hew caufe wliy this judgment fhould not be 
fet afide for irregularity, it was contended for the defend- 
ant, that by the pra£lice of the court, when a day is fixed 
for pleading, to*«:, that day is confidered as continuing 
till the office opens next morning, and that you are regu- 
lar if you comply with the rule before that time. And 
the court being of that opinion (w), the rule was madq 
abfolute [5]. 

Woody for the plaintiff. — Douglas y for the defendant. 

3d Feb, 

On a rule to 
plead by a 
particular day, 
that day is 
conlhnied to 
continue till 
the office open 
next moruing. 

(w) But *vide 7*. 19 G. 3. HaeJIar v. 
Jtt/elL infra, 187. 

[5] This fait was by original. By 
not returning the paper -book till the 
Tbur/dayy the defendant prevented the 
plaintiff from having judgment of this 
term. Eight days notice of trial (ex- 
dufive) is required by the rules of the 
court. If the paper-book with the ge- 
neral KTue had been returned on the 
iVedmfday (27 th January) notice of trial 
might have been given for the Thur/day 
fe'nnight following (4th February), for 
which day the fecond fitting in term 
ftt Guildhtdl was appointed. This waa 

before the lad return day, (ilth ^9*- 
bruary) when the dißringas would have 
been returnable. Being not returned 
till Thur/day, the eight days went be- 
yond the fourth of February, and there 
was no fitting after that till the laft day 
of term (12th February), which was 
after the laft return. If the plaintiff 
had fued by bill, this advantage could 
not have been taken ; becaule the re* 
turn may be on any day in the term» 
But then the defendant might have 
hung up the caufe for twelve months 
by a writ of error in the Exchefuit 

F a 




4th Feb. 

The groats 
ttvßder the 
Lords' aa 
muft be pnid, 
every Monday. 
—A judge*s 
Older for a 
prifoner's dif- 
charge under 
that a6t, made 
out of ternif 
ts Hnal. 

Lench againß Pargiter. 

'T^HE defendant had been brought up on a Wednefday^ to 
•■■ be difcharged under the Lords' Aft (0), but was re- 
manded on the plaintiff's paying him two {hillings and 
four-pence, and giving him a note for the payment of the 
like fum, on Wednefday^ in every fubfequent week. In the 
lad vacation, the defendant applied to Willes, Jtißicey to 
be difcharged, on the ground, that the two (hillings and 
four-pence had not been paid, nor the note made, agree- 
able to the direöions of the ftatutc, which are, that the 
payment of the groats fhall be made on Monday in every 
tveek, and the note framed accordingly. It was admitted 
that the payments had been regularly made the firft and 
every Wcdnefday till the defendant's application to be dif- 
charged. Willes, Jujlicey was of opinion, that the de- 
fendant was entitled to his difcharge, and, on the firft day 
of this term, made an order for that purpofe. On Thurfday^ 
the 28th of Jnriunryj Ba/dtvin moved for a rule to fhew 
caufe why that order (hould not be Cct afide, and the 
plaintiff be at liberty to retake the party, and ftated, that 
the con ft ant practice in this court had been to pay the 
groats on that day week on which the party was brought 
up, and fo fucccffively, and to make the note for payment 
on thofe days. In this he was confirmed by the officers of 
the court. He cited alfo Shaw v. Gimberty in Barnes {p)y. 
•^Yitnzy in the Common PleaSy the money was made payable 
on a Tucfday [6]. He urged, tliat tlic fpirit of the acb had 
been complied with, as the prifoner had been paid weekly., 
That, in another cafe in the fame book, where the money 
was made payable on Mondayy the plaintiff having flipt that 
day, but having tendered it on the Tuefdayy the Court of 


{0) 32 G. 2. c, 28. § 15. 
(/) A/. 7 C, 2. Barnes quarto 
idit. 369. 

[6] I'his cafe, and Beech v. Paxton, 

m\iü have been upon feme temporary 
rtatute. They happened more thaii 
twenty years before the Lords' aft 
paffed [t33.]. 

[f 33] Probably on 2 Geo. 2. cap, 22-; 
and there is a remarkable difference 
between the words of that ai^, and 
thofe of the perpetual Lords' adt In 
that of 2 Geo. 2. the words are, " un- 
** lefs the creditor do agree, by writ- 
*' ing under his- hand, to pay and al- 
•* low weekly, a fum not exceeding 
*' i/. 6 dn per week, onto the iaidprir' 

** foner, to be paid the ßrß day of e*vtry 
•* iveek ;'* § 9. But, in 32 Geo. z, 
c 28. the words are, *« (ball agree by 
'* writings &<:. to pay and allow 
" weekly a fum, &c. unto, &c. to be 
•*' paid e'very Monday in e*very 'week ;" 
J 13. This difference reconciles the 
cafes in Barnes to the pradUce of C. B.^ 
ttttder.ja Qto, z. 


Common Pleas refufed to difcharge tlie prifoner ; Beech v. I 7 70. 
Paxton, nvidow (q). ^ ^ ^ 

Morgan now fliewcd caufe, and infifted on the words of Lench 
the ftatute, and that there was a good reafon why all payments again ft 
(hould be made on the fame day, efpecially in the great pri- PARcixEa. 
fons in London^ becaufe the fervants belonging to the pri- 
fons knew, thereby, when they muft attend. He faid the 
tlefendant could not wave his right, by accepting of the 
note and payments. That the note at firft was not fuch an 
engagement as warranted the court in remanding him, 
and as to his fubfequent difcharge, a difcrction was, by the 
aft, vefted in a fingle Judge in vacation, which, hav- 
ing been exercifed by Willes, Jujlice^ in this cafe, ought 
to be final. 

Lord Mansfield, — This cafe muft be confidered with 
a reference to the application, which was made in the va- 
catioh ; and a fingle Judge having then a complete autho- 
rity, I do not fee how the court now can controul tlie or- 
der. Mr. Jußice Willes confulted the other Judges at 
Serjeant's Inn before he figned it, and they thought it 
right. They afterwards fcnt him word that they doubted, 
and he fent to recall his order, but it was too late. As to 
the general point, enquiry has been made, and the praöicc 
in this court has been as ftated by Mr. Baldwin j and the 
officers, for above thirty years. In the Common PleaSy it 
lias always been otherwife. There, the plaintiff pays the 
fraäion from the day of the application to the next Mon-- 
day^ and then gives a note for, and makes his payments on, 
every Monday afterwards. The Judges of the Common 
PleaSj fay there never was a note in that court made pay- 
able on Tueßay ; fo that Barnes muft have miftakcn [f 34]. 
In the prefent inftance, although we think the man has no 
right to the advantage of the miftake after having received 
the money, b order is final. In future, as it is proper 
that the pra^- /^e of all the courts fliould be uniform, and 
that of the Common Pleas is moft confonant to the words 
of the aft, let all notes be made payable on the Monday. 
It is much more convenient that there ihould be one com- 
mon day, that the turnkey may know when to attend. But 
it is to be undcrftood that no other prifoner, already re- 
manded, will be difcharged, becaufe the payment is not on 
a Monday, unlefs the Monday happens to be the day when 
he was remanded. 

(f) £. 6 G. 2. Barnes quarto edit. [f 34] f^ide the foregoing page, 
367. Note [t 33]- 





Satunhy, JJ^g KiNG gK^inß thc INHABITANTS cJT 
6ih Ftb. ^ ey 


If the matter 
of an appren- 
tice die, and 
the executor, 
at the pauper's 
requtft, agi-cc 
that he (hall go 
to live with 
another perfon, 
a fervice of 
forty days 
with fuch per- 
fon, before the 
term of the 
expires, gains 
a iettlcment 
under the ap- 

A PAUPER was removed to thc parifh of Stpcklciml^ 
and the feiFions confirmed thc order, Hating as fol- 
lows.T— That thc pauper was bound an apprentice in huf- 
tandry, by the parifh of Siochlandy to John Davies of that 
parifh, till he Ihould be twenty-four years of age. That 
ne lived there four years, under that indenture, when thc 
mafter died. That he continued v/ith his mailer's for., 
who was his executor, and had proved his will, for about 
feven years, in the fame parifli \ when^^ being defirous of 
living with his uncle, in the parifli of Otterton^ to learn 
the trade' of a miller, his uncle and he applied to the 
executor for his confent, who gave his confent according-p 
ly, faying he would do any thing for the benefit of the 

Eauper, and that then the pauper made an agreement with 
is \incle for i j. 6</. per week, and continued with him, 
in the whole, two years and an half \ at thc end of the 
firft four months of which time the pauper attained his 
age of twenty-four years. 

The Solicitor General now argued in fupport of the or- 
der. He contended, that the contraft between a mafter 
and his apprentice is merely perfonal, and dies with thc 
ynafter. This has been decided in the cafe of Baxter vl 
Burßeld (r). By law there can be no valid afFignment 
of an apprentice. An aflignment is indeed evidence of 
the origmal mailer's confent to the apprentice's refidcnc« 
with thc new mailer ; but here that prefumption failsi 
bccaufc thc original mailer did not exiil when the pauper 
was aifigncd. — He endeavourecl to dillingufli this cafe from 
thc King v. Bridgeförd (/)• 

Dunning and Fanjbaw on the other fic\c.-r-They faid, if 
an apprentice refides in a pariih, by the confent, either of 
his mailer, or the executor or adminiilrator of the mailer, 
he gains a fcttlement ; and, for this, they cited the Kin^ 
V. Bridgeford. Here, there has been no diiTolution of th<; 
apprcnticeihip by the a£l of the parties, and no cafe has 
gone fo far as to decide, that an apprenticefliip is of courf<? 
difiblved by thc death of the mailer. It has only been 
decided, that an apprentice cannot be con\peUed to ferve 
the mailei's reprefentative. The cafe of Baxter v. Bnrfiel4 
was founded on the con trad having been made for the 
purpofc of tcachiing the apprentice a trade, which an ex- 

(r) B. 


R. £. zo Geo. z» 2 5/r. 

(/) T, 12 G. 2. 2 5/r. 1 1 15. 
Bwrr.SiuUQafiii Ko, 43. 

S. C\ 


ccutor might not be able to teach. There never has been 1770. 
fuch a decifion as to parifh apprentices, and the reafon ^ _j 

does not apply to their cafe. — ^They cited the King v. TheKiKO 
Clapham (/), and the King v. Taviftock (//), to fhew, that, again (I 
after an apprentice has been once transferred, the confent Stock- 
of the original mafter is not neceflary to a fubfequent land. 
transfer of him. But they chiefly relied on the King v, 
Bridgeford^ as having gone much farther than this prefcnt 
cafe would do ; becaufe, there, the aifignment was by a 
perfon who had only the right to the adminillration, but 
had not adminiflered. 

Lord Mansfield, — ^Though an apprentice is not ftri£Hy 
affignable, nor tranfmiiFAle, yet if he continue, with the 
confent of all parties and his own, it is a continuation of 
the apprenticefliip. The cafe of Bridgeford is much ftronger 
than this. 

Both orders quaOied, 

(/) E. 20 Geo. 2. Burr. SettLCa/es, (») T. 7 G. 3. Burr. SettL Ca/et^ 
t^o.^i. No. 186. 

Hayley again^ Riley. ^6^hFcb? 

ACTION of debt, on a replevin bond, and a verdift Jf a defendant 
for the plaintiff. The defendant obtained a rule to 5 7„";* ?J^^^^^ 
fhew caufe why the verdift fhould not be fct afide, /^^ tion fori year, 
cau/e having been ß*fpended^ after iffite joined^ for above a and afterward^ 
wr, and Sien brought to trial, without giving a temfs the plaintiff 
notice IS], ^ KtÄout. 

Baldwin now fliewed for caufe, that the trial had been term's notice, ' 
ftopped by the defendant himfelf, under an injunftion and obtain a 
from the court of Exchequer y and faid, that the court verdift, the 
would never fuffer a party to avail himfelf of a privilege f^^jJJjd^thT^' 
arifmg from a delay which he himfelf had occafioned. venlift, 

ITie Solicitor General^ on the other fide, infifted, that 
the trial without notice for a term was irregular, and that 
the verdia muft be fet afide ; for which he cited Peyton v. 
Burdus (w). He contended, that, on a proper applica« 
tion to the court of Exchequer^ the plaintiff might hav<j 
had leave, before anfwer, to proceed to trial, and that it 
was univerfally underftood. In praftice, that an injunc- 
tion is no excufe for not complying with the eftablifh- 
ed rule. 


[6] Roles of C. B. M. 1654, § 21. M. 1654. [«^1 ^*^^ introduced m 
1 do not find when this rule was adopt- B. R. T. 5 cf 6 Geo.z. 
ed by the Court of King's Bench. It M B. R. M. izG, x. 2 Str. 1 1 10. 
makes no part of the body of rules — /OVr ^fo fiogg v. Roß, is. 15 Cx. a. 
made by that court in the fame term ; 2 Str. 1 164. 




again (I 


Lord Mansfield exprefled his indignation at the de- 
fendant's endeavouring to take advantage of a delay oc- 
cafioned by himfelf, to proteft himfelf againft a deed 
under his own hand and feal, and feemed furprifed when 
he was informed, that the injunftion had iflued without 
any affidavit by the defendant, (the plaintiff in equity), 
of any faft which entitled him to a flay of proceedings. 

BuLLER, Jußiccy faid, the praftice was as it had been 
ftated by the Solicitor General ; that it was grounded on 
the principle, that the injunftion was no proceeding in 
the caufe depending in this court ; but that he thought 
this a cafe where the court might very well alter the 
praaice(7). [fas]. 

The rule difchargcd. 

[7] In Bofworth V. Philips , T, II 
Geo. 3. which was a cafe parallel to 
this, the court of Common Pleas held, 
that the rule only extends to voluntary 
delays by the plaintiff, and that a de- 
lay by an injun£tion is, from the nature 

of the thing, an exception to the rule* 
2 Blackß. 784. Vide fValier v. Stiutrt^ 
C. B, T. 13 Geo, 3. 2 Blachß. 918. 

[t 35] ^i^^ I'Vorral v. Steuuart^ 
B, R.M. 21 Geo. 3. 

6ih Feb. 

Lilly and Others againß Ewer. 

In a policy of 
infii ranee, 
•* failing with 
means *< fail- 
ing with con- 
voy for the 

^HIS was an aöion for money had and received, 
* brought againft an under-writer, for a return of pre- 
mium. The policy was on the (hip the Parker galley ; 
" at and from Venice to the Currant Ißandsj and at and 
** from thence to London ;" at a premium of five guineas per 
cent. ; " /(? return 2 /. per cent, if the ßip failed ^vith con-^ 
" voyfrow Gibraltar, and arrived.'^ The (hip touched at 
Gibraltar on her way home, and failed from thence under 
convoy of the Zephyr floop of war, but the convoy was 
deftined only to go to a certain latitude, about as far as 
Cape Finifterrcy being ordered on the Lifbon ftation ; and, 
accordingly, the fhip and convoy feparated, and the fhip 
;^rrived fafe at London, The only queftion in the caufe 
was, Whether, bv the terms of the policy, the condition 
for the return ox premium was, a departure from Gib^ 
raltar with fuch convoy as could be met witli, for, 
whatever part of the voyage that might happen to be, 
or, a departure with convoy for the voyage? The trial 
came on at Guildhally before Lord Mansfield, and a 
common jury, at the laft fittings, when a verdiö was 
found for the plaintiff. 

On the fecond day of this term, a rule was obtained 
to fhew caufe, why there fliould not be a new trial, and 
the cafe came on to be argued this day ; when, upon 



Lord Mansfield's report of the evidence, it appeared, 1 770, s 

that the plaintiff's had called witnelTes, (one of whom y_ _ _y } 

was Mr. Gorman^ an eminent merchant,) who fworc, that, Lilly ! 

for fonic few years paft, when coxnoy for the voyage^ or the again ft ! 

svhole voyage f was intended, tliofe explanatory words had Ewer. I 

'been added, and that, by this ufage, the expreffions of 
** fculing with convoy y* and ^^ failing with convoy for the voy^ 
<« age^** had received diftinft technical meanings ; ** with 
** convoy," fignifying whatever convoy the fliip fhould de» 
part with, whether for a greater or lels part of the voyage. 
Several policies were alfo produced, which had been filled 
up at the office of the fame broker, who had prepared 
that which had given occafion to this caufe, in which 
the words, ^* for the voyagCy^ or ^^ for England^* were 
added. The captain proved, that, at the time when he 
left Gibraltar J no other convoy was to be had.«^— The 
•witneflcs for the defendant fwore, that they underflood 
the words ** with convoy* to mean convoy for the voyage ; 
and the broker faid, that, at the time when this policy 
was figned, he underftood, and apprehended it was fo un- 
derflood by all the parties, that the convoy was to be for 
the voyage, and that the return was fuch as was ufuai 
V'hen convoy for the voyage was meant. His Lordfhip, 
after ftating the evidence, faid, that when the cafe was 
opened, he thought, on the face of the policy, that the 
words muft mean for the voyage. He had not admitted 
the evidence, to aik the opinion of the witneffes on the 

conftruöion, but to learn whether there was any ufagc » 

in this cafe which would give a fixed technical fenfe to the 
words. This was a queftion of faä: to be afcertained by 
evidence, and proper for the confideration of a jury. 

Dunning and Davenport , for the plaintiffs. — Bearcroft 
and Baldwin^ for the defendant. 

For the plaintiffs it was infifted, that the queftion had 
been fairly and completely tried. The fenfe in which the 
words were to be underftood, depended on the ufage. His 
Lordfhip had ftated to the jury, the interpretation they 
jnuft receive, independent of ufage, and told them, if they 

were not fatisfied with the evidence for the plaintiffs on ^ 

the head of ufage, they muft find for the defendant. The ^ 

verdift muft, therefore, be confidered as having been found 
upon full confideration of the proof as to the ufage. 

For the defendant, it was argued, that the obvious and 
natural import of the words, and alfo the weight of the 
evidence, were in his favour. Even if the words were 
doubtful, according to a known and eftablifhed rule of 
law, they ought to be conftrued moft ftrongly againft the [ 74 1 
perfon who ufed them. Here, they were the words of 
the infured, and in the nature of a warranty on his part. 
13 It 


Ijycu It was alfo faid, that when partial convoy was meant, It 
^ - J had of late been a frequent praftice, efpecially in policies 

Lilly on this Levant voyage, to fpecify how far the convoy 

againft was to come ; as, ** convoy to the Cape^ •< convoy t§ 

Ewer, Lj/bwy' Sec. 

Ix)rd Mansfield, — On the words, I was ftrongly of 
opinion, that the policy meant a departure with convoy 
intended for the voyage. The parties could not mean a 
departure with convoy which might be defigned to fepa« 
rate from the fliip in a minute or two ; though, when con»- 
voy for the whole of a voyage is clearly intended, an un- 
forefeen fcparation is an accident to which the under- 
writer is liable; for the nKaning of fuch a warranty is 
not that the fhip and convoy mud continue and arrive 
together. But I ftill think that the evidence was properly 
admitted at the trial of this caufe, becaufe the fenfe con- 
tended for by the plaintiffs was not inconfiftent with the 
words of the policy ; and, therefore, it was material to fee 
what the ufage was. I laid great flrefs on Mr. Gortnan*& 
teftimpny. I did not confidcr him as a common witnefs. 
However, it fecms, from what I have heard fince, that 
people in the city are diflatisfied with the verdift, and 
think the evidence of the plaintiffs' witnefles was founded 
on a miftake. Certainly critical niceties ought not to b« 
encouraged in commercial concerns ; and wherever you ren- 
der additional words neceffary, and multiply them, you alfo 
multiply doubts and criticifms. It may be hard, becauf« 
words have been added in fome inftances, to force a con- 
ftruöion in this cafe, from the omiffion of thorn. Th« 
jjueition is of great importance. 

The rule made abfolute [7]. 

[7] The new trial came on before //o//, 465. where, according to Z^i'/W, 

Lord MansßeUy at the fittings after upon a fpccial verdidl, finding a war-* 

TrittityTirtny 1 9 Geo, 3. when a ver- ranty in thefe words, ** 'warranted to 

iÜb. was found for the defendant. Vide '< depart nvith con'voy,^* Holt, Chief 

the cafe of JeJ'ery v. Legeeder, 3 Uv» Juftice, and the greater part of the 

xzo.B.R. M.^fi'.isfM, or Jejhysv. court, held, that thofe words mean 

iiyr»/rÄ, as it IS called in other books; failing with convoy for the whol^ 

s Wi. 443. I Shonv, 320. 4 Mod, 58. yoyage [f 36]. 

[t 36] Vide Gordon y.Morleyi and Campbell v. Botdell» Guildhall, H. ZQ 
Ceo,!. Z 5/r. 1263. 




Doe, Leflee of Watson and Otl^ers, againß Moiuhy, 

ShIPPHARD. «thfeb, 

1 N an aftion of ejcöment, a fpecial verdict was found. Under a devlfe 
* which ftatcd ; — that John Hewitt j being feifed in fee of of land ;^to 
feveral mcfluages, tenements, and lands, in the counties ^J*"ft«c» to pay 
of Effex and Lancaßer^ by his will, bearing date the 2d ^^^^^ ^^^ JJ^_ 
ai July 1727, dcvifed as follows ; viz. all his mefTuages, Ars to the tcfta* 
tenements, lands, and hereditaments, in EJfexy to four tor's daughter, 
truftces and their heirs, (one of whom, named Charles u"^u^^"V* 
Shipphardj was the defendant,) upon fpecial trull and con- ^^j ^^^^ whole 
fidence, that they fhould, out of the rents and profits rents and pro- 
thereof, levy and raife the fum of 20 /. and pay the fame fits to the huf- 
to Rachel Shipphard his daughter, and then wife of Tho- ^^"^ J^^f ^^ 
mas Shipphard, annually, during her natural life, by four deat?-^and in 
quarterly payments, to her feparate ufe ; and, upon the cafe the daugh- 
farthcr truft and confidence, that they fliould pay and ter fliould fur- 
difpofe of all the refidue of the rents and profits, as alfo ^«ve her huf- 
of the whole rents and profits thereof after the deceafe of AhelamlTt» 
his faid daughter, to the ufe of the faid Thomas Shipphard the ufe of the 
for the term of his natural life 5 ** aftdy in cafe my faid daughter for 
daughter Rachel ßould happen to furvive the faid Thomas ^^^ » ^"^» ^^^^ 
Shipphard her hußand, then, upon truft and confidence, ^ ufe of Xa 
ithat they the faid truftees fliall ftand and be feifed, of airfon in tail, 
and every my faid mefluages, lands, tenements, and heri- then to the 
ditaments, to the feveral ufes, intents, purpofes, and upon jj^'j* ^f ^J*^ 
the fevibral trufts, herein-after mentioned, v/z. to the ufe h°^ji,Jj ^^r 
and behoof of riiy faid daughter Rachel, for and during her the daughter, 
hatural life; and, from and after the deceafe of my faid then to the 
^daughter, then, to the ufe and behoof of my grandfon h««"ofhcr 
Hewitt Shipphard, fon of die faid Thomas and Rachel Shipp^ the üiirs of th^c 
hard, and the heirs of his body, and, for default of hulbandj— the 
fuch iflue, then, to the ufe and behoof of the heirs of the daughter dying 
body of the faid Thomas Shipphard, begotten or to be be- ^ion her hui- 
gottcn on the body of the faid Rachel his wife, and, for Si^'oVer"*' 
default of fuch iflue, then to the ufe and behoof of the (hall not take 
heirs of the body of the faid Rachel my daughter, by any eiFcft, the con- 
other other hufband, and in default of fuch iflue, then to tingency not 
the ufe and behoof of the faid Thomas Shipphard, and his j'^^hfr'^life^-"*^ 
heirs for ever. Item^ I do give, devifc, and bequeath, ail ^itatc, but 
my mefluages, lands, tenements, and hereditaments, in afFc6ling all 
the feveral pariflies of Eccles and Dean, in the county of the other li- 
Lancafer, to the faid (truftees), upon the feveral trufts, "t"?"'* *"J 
and to and for the feveral ufes, intents, and purpofes, herein- condition prc- 
after mentioned, viz, to the ufe and behoof of the faid cedent, 
Thomas Shipphard and! his wife, and the furvivor of 
them, until fuch tinrx a^ the faid Hewitt Shipphard my 



1 770. grandfon attain the age of twenty-five ; and from and 
1^ _ - f after the deceafe of the faid Thomas Shipphard and Rachel 
Dob his wife, and the furvivor of them, and, after my faid 

•gain ft grandfon's attaining his age of twenty-five years, which 
Shipp- fhall firft: happen, then to the ufe and behoof of the faid 
HARD. Hewitt Shipphard mj ^xzxiiMon and the heirs of his body; 
and, for default of fuch iflue, or his dying under the 
faid age, then to the ufe and behoof of the heirs of the 
body of the faid Thomas Shipphard begotten, or to be be- 
gotten, on the body of the faid Rachel his wife ; and, in 
default of fuch iflue, then to the ufe and behoof of the 
heirs of the body of the faid Rachel my daughter, by ;;ny 
other hufband \ and, in default of fuch iflue, then to the 
ufe and behoof of the faid Thotilas Shipphard^ his heirs 
and alfigns for ever." — 'Yh?Xy on the tellator's death, 
Th&fnas Shipphard his fon-in-hiw entered upon all the de- 
vifed premifes, and held them till the time of his death. 
That Rachel died in the life-time of her hufband. That 
the hufband died in July 1771, leaving Hewitt Shipp* 
kard^ his only fon and heir at law, who, on his father's 
death, entered upon all the devifed premifes, and en- 

}"oyed them till his death. That Thomas Shipphard never 
lad any otlier iflue by his wife RacMy but Hewitt Shipp^ 
biirdi who died in December 1775 inteflate and without 
ifTue. That three of the trufl:ees were dead ; and that 
Charles Shipphard^ the defendant and furviving truflec, 
was the eldell brother and heir at law of Thomas Shipp- 
hardy and alfo the eldeft uncle and heir at law, on the part 
of the father, of Hewitt Shipphard. That John JVatfon^ 
and Mary the wife of John Powelly two of the leflbrs of 
the plaintiff, were nephew and niece, and heirs at law of 
the teflator, and alfo heirs at law, on the part of the 
mother, of Hewitt Shipphard* — The ejectment was brought 
for the eflate in EJjex. The cafe was argued on Friday 
the 5 th of February. 

Balgttyy for the leflbrs of the plaintifl\ flated the quef- 
tion to be. Whether the limitation in fee of the EJfex 
eflate to Thomas Shipphard^ had taken effeö ? That the 
whole depended on the claufe beginning, ** and in cafe 
*< my faid daughter," ÜTr. and on the faft that the daughter 
had not furvived her hufband. He faid, that if, in the 
event which had happened, there was no devife over, the 
leflfors of the plaintiff were entitled to recover. That, 
upon the face of the will, the teflator appeared to have 
provided for two events, ifl, That of the hufband's fur- 
viving his wife. That, in contemplation of that event, 
[ 77 ] he had given him a life-eflate after his wife's death; and 
that atter his death he might naturally mean that the eflate 
fhould defcend to his grandfon, who appeared to have been 
a favourite. 2d, That of the wife being the furvivor. That 



the limitations over after her death were pnly made //; cafe \ "inQk. 
file fhould happen to furvive her hufband. That, if the i _ ^ y 
contingency of her fur\'iving were to be confulered as an- Doe 
nexed only to her life-eftate, and not as a condition pre- again It 
cedent before any of the ufes limited over could arife ; Shipp- 
then, in the event which had happened, Tl^tnas SMpphard hard, 
the hufband became tenant for life, with remainder in 
tail to his fon Hewitt then in effty remainder in tail to 
himfelf. That, if fo, he had it in his power to have barred 
all the iflue of his wife, except Hewitt the fon. That this 
could never be the teftator's intention, becaufe it was 
clear that he meant particularly to provide for all child- 
ren of his daughter. That if he had forefeen what had 
happened, the death of his daughter and her only child 
witliout iflue, he never coukl have meant that, in fuch 
event, ftrangers (hould be preferred to his own blood. 
That a material argument arofe from the diverfity between 
this and the devile of the Lanca/bire eftate ; for that, 
there, as the teftator meant no condition precedent, he had 
annexed no conditional words to the fubfequent eftates, 
but had limited them over in direft terms. That, if the 
intention were not fo clear as it appeared to him to be, 
yet, as the words were clear, the court would not explain 
them away, in order to adapt them to a doubtful inten- 
tion. That it was rare that cafes cited on the conftruc- 
tion of wills were very appofite, and he (hould only men- 
tion Davies v. Norton (x), being, as he faki, a ftronger 
cafe than the prefent, and where there could have been 
very little doubt about the intention. 

Honvorthj for the defendant, contended, that no man 
who was not a lawyer, upon reading the will, could en- 
tertain any doubt of the tcftator's intention to veft the fee 
of the EJfex eftate in his fon-in-law, Thomas Shipphard. 
That the difpoiition of the Lancajhire eftate corroborated 
the argument, becaufe it was manifeft from thence, that 
he was a great objeft of his favour and bounty, the remain- 
der in fee of that eftate being undoubtedly given to him 
in % W events. That if the conftrutlion contended for on 
the part of the lefTors of the plaintiff were to prevail, this 
abfurdity would follow, that the fon-in-law himfelf could 
derive no benefit from the devife in his favour, becaufe he [783 
muft be dead, before the contingency could happen by which 
the remainder in fee was to veft in him. That the teftator did 
not mean any contingency by the M'ords " andiu caßy is^c. ;** 
for that to give them that operation would be to fuppofc 
he intended a partial inteftacy. That if they fhould be con- 
ftrucd to exprefs a contingency, yet that contingency only 
extended, and was annexed to the life-eftate to Eichel, 

{jc) M, 1726* ft PsireWnu. 39^. 


fg • Cases in hilart tjerm 

1 770. *^d ^^^ "o^ affeö the fubfequent iimitationsi which wcrd 

^ _ _ ^ all meant to be vetted remainders. That the cafe of Nappet* 

Doe V* Sanders {y)^ which was cited and relied on by Lord 

againft Hardwicke, in Tracy v. Lethieullier (%)y was in point, in 

Shipp- favour of this conftruftion» That the determination in 

HARD» Davits V. Norton was inexplicable, the intention being 

manifeft the other way [8]* That here the collateral heirs 

of the tcftator were not once mentioned in the will. 

Balgtty^ in reply, infifted, that his conftruftion was 
moft confonant to the intention of the.teftator. That 
there was nothing abfurd in fuppofing that, in the event 
of his daughter's dying before her hulband^ he meant a 
partial inteftacy, for then the eftate would by couxfe 
of law defcend to his favourite grandfon. That as to the 
contingency being only annexed to the daughter's eftate^ 
fuch a conftruftion was fo plainly againft the words of the 
will, that nothing but a direft authority could fupport it. 
But that the cafe relied on was very diftinguifhable from 
this. That, in that cafe, there was no contingency pre- 
vious to the eftate to the feoffees, but the contingency 
immediately preceded and was annexed to the particular 
eftate of Elizabeth Sanders^ and therefore the fubfequent 
limitations being (as Lord Hardwicke faid in Tracy v. 
LethieuUier) fubftantive limitations, and independent of 
the former, they arofe out of the feifin of the feoffees, 
although the eftate to Elizabeth could not, as the contin- 
gency, on which her eftate was to depend, had not hap-^ 
pened* That here, on the contrary, the truftees were to 
%and feifed only on the contingency of the wife's fur- 
viving her hufband, and that all the limitations were con- 
neüed with that event, and dependent upon it. 

The court took fome days to confider ; and now. Lord 
Mansfield, after ftating the cafe, delivered their opinion 
to the following effeft : 
t 79 3 Lord Mansfield, — The queftion is, whether the limit- 

ations over are to take efFedl in the event which has hap^ 
pened, of Thomas Shipphardy the hufband, having furvived 
his wife, the teftator's daughter ? Now there are no ox- 
prefs words limiting the eftate over on that event, and yet 
it is plain that it was forefeen by the teftator, for he gives 
the rents and profits to the hufband after the death of the 
wife. The teftator then proceeds to fay, ** and in cafe my 
faid daughter Rachel fhould happen to furvive the faid Tho^ 
mas Shipphard her hufband, then upon truft," £5*r. The 
court may fupply the omiffion of exprefs words, if they 


{j) Hüft. 118. Reynolds i Jufticc, who tried the caufr^ 

(») Ca». 1754.3^/^.774, t^AmbL and for whofe opinion a cafc wa« xc- 

*04* fcrvcd« 
[8] Itwasbatthefinglededfionof 


find a plain intent ^ but unlcfs that is the cafe, they carifaot j 770. 
do it \ and, upon full confideration of the whole of this _ ^ 

will, we do not find there is fufficient for us to gather fuch Doe 
intent, fo as to warrant us in fupplying the omitted words^ againft 
Guefles may be formed, but that is not enough. Perhaps, Shipp- 
quod voiuit non dixit. We cannot make a will for the tef- h-aä** 
tator. Conjedlures may be made both ways- The argu- 
ment, which was drawn by Mr. Howorth from the devifc of 
the LaHcaßirt eftate, turns the other way. There may be 
a reafon why the teftator might not intend the limitations 
over to take place, except in tke event of the daughter's 
fiirviving her huiband, v/z. to fecure the eftate in tail to 
his grandfon, Heivitt Shipphardy againft any preference his 
daughter might (hew to her ifTue by any fubfequent huf- 
band. If (he did not furvive him, there could be no danger 
of that fort, as the eftate would defcend to Hewiti Shipp* 
hard. This bears no rcfemblancc to the famous cafe of 
Jones v. Weßcomb (a), for, there, the intention was clear 
that, failing the child, the eftate (hould go over to the de- 
iifees in all events. 

Judgment for the plaintiff [O^*]. 

(«) M. 1 7 1 1 . Prec. in Chan. 3 16. Wilkinfon, B. R. H.2S Geo. 3- 2 Term 
] Ef. Ca, 245. Rep, 209. 

[Ö*] Ftae Doe, Lejfee of Fefey, v. 

The King againß the Mayor and Burgesses ^^^ 
of Lyme Regis, on the profecution of Da- 
vid Robert Mitchell. 


IAN DA MUS to reftorc David Rohert MitMl to A return to a 
the office of a capital burgcfs of Lyme Regis. The "ft^J^^^l' 
writ — after reciting that Mitchell was duly cleäed, ad^ i„g^ that 
mitted, and fworn, a capital burgefs of the faid borough, the proTeca- 
and as fuch capital burgefs had always behaved and go- tor—" wa« 
vcrned himfclf well, yet that they * the faid mayor, &c. "^^pcted 
without any juft or reafonable caufe, had unjuftly removed admitted, and 
the faid Mitchell from his office of a capital burgefs — fworn"— is 
commanded them to reft ore him, or caufe him to be re- *'^^- 
ftored, to his office, or to fignify caufe to the contrary. — * * C 80 ] 
To this, the defendants returned, " that Mitchell was not 
*« duly elecledj admitted^ atidfivorn^ a capital burgefs of the 

** faid borough, and therefore they could not reftore him, . 

** or caufe him to be reftored." 1 

On Saturday^ the 6th of Fcbrnary, the fufficiency of this 
return was argued, by Rooke fox the profecutor, and Law* 
nnci ioi the aefend^nts. 


I77Q* J^ooie^ — ^^fhc return does not deny that Mitchell hsd 

\_ - ^ been, d^ fa^o^ in pofleffion of the office of a capital bur- 

The King gefs 5 therefore, the conclufion, that they cannot reftorc 
again ft him, does not follow from the premifes. The complaint 
Lyme is, that he has been removed from an office, from which 
Re 01s. they had no right to remove him. They may reitore him, 
whether he was duly eletled, fworn, and admitted, or not-r 
The mandamus ftates, that he was duly elected, 6j*r. only 
by way of inducement, and the defendants ought to have 
fet forth the reafons for which they turned him out. The 
reftoring him upon this h^indamus could not decide the 
right. After he has been reftored, that may be tried in the 
regular way by a quo warranto. The qucllion is. Whether 
a corporation, having once admitted a member, can after- 
wards disfranchife him for want of an original qualifica- 
tion ? Now it is fo plain that they have no fuch authority, 
that there is not a hint of it in any cafe I have ever met 
with. The caufes of amotion are enumerated in Bagg's 
Cafe J II Co, (^), in Carth. 176. (f), and in i Burr, 538. 
(rf), but this is no where dated as one of them. — (Lord 
Mansfield—" Are you not hampered by the writ ?") — 
The writ is in the ufual form. The word *< duly^ is in all 
the precedents in Tremayne^ and the other books. It is 
merely a word of inducement. The gift of the complaint 
is the removal. All the general books, and many of tlie 
reports, confound the mandamus to admit, with the manda- 
mus to reftore. Non fuit debiti ele^us is a good return to . 
the firft, but not to the other, and this clue leads to the 
explanation of all the contradi<äory diBa on the fubjeft. 
Upon principle, it is clear that a corporation ought not to 
have the power to remove a corporator defa^o^ on a defeft 
C 81 3 of title. The franchife is the corporator's freehold. Entry 
by the feoffiar cannot divert the eftate of a man duly en- 
feoffed . After a defcent caft the difleiflee cannot recover 
the land by entry. So, a clerk who has been prefented 
under a bad title, and has been inftitutcd and induced, 
acquires a poflefTory right, whicli cannot be diverted but 
by quare impedit. The analogy between corporate and other 
rights would be overturned, if a man could lofe his fran- 
chife for defed^ of title, by the mere vote of the corpora- 
tion who admitted him. Great inconvenience would arife, 
if a power to disfranchife, on a defeft of title, were verted 
in corporations. Many would be totally overturned by it. 
In this borough, the capital burgefles are elefted only by 
the capital burgeflesj but the disfranchifement is by the 


{jt) T. 13 ^ac. I« 11 Co. 93. ^. He cited alfo Rex v. Mayer of Derby. 
(f) ^lä I W. \ä M. Sir Thoma$ T. 8 Geo. a. Cafes Temp. Lord Hard- 
Earless Cafe, nut eke 153. and Hereford's Cafe, T0 
{d) £. 31 G. 2. Rei v. RnbardfoH. 16 Car. a. Sid. 209. 


t^orporatioti at large. If they could disfranchife on a fup» 1 770. 
pofed want of title, the right to eleft would be a nugatory ^ - _i 
privilege in the fele£k part, becaufe it might be frultrated The King 
by an immediate Removal by the whole body. It is eafy to againft 
fee, to what extent this power might be abufed. After Lyme 
disfranchifement, and a mandamus to reftore, the corpora- Regis. 
tion might put the party to a traverfe, or aftion on the re- 
turn, and, if he fucceeded, and obtained a peremptory 
tnapdamusy they might again diipute his title by quo nvat" 
ranto. Be(ide&, this fort of removal may be put in praftice 
at any diftance of time, — after poiTeflion for 30, 40, 50, 
years, — akhongh this court will not truft themfelves with 
the authority of removal, in the regular way, after poflef- 
fion for twenty years fp.] The rule would be nugatory, 
if, "by another mode, the limitation could be evaded. Cer- 
tainly, when the court eftablifhed the rule, it was intended 
to prevent any impeachment of a corporator's title after 
20 years, by any private perfons. This power, too, might 
^bc partially ex^cifed, at very critical periods. For in- 
ilance, a mayor ele£l might be amoved before he is fwom ; 
and this is not ideal^ for it happened in this <^ery cafe. 
'Mitchell J being mayor eled, was disfranchifed as a capital 
burgefs, by which means he could not be fworn In to his 
office of mayor, without a mandamus to reftore him ; and, 
in the mean rime^ the old mayor now holds over. By the 
fame fort of management^ with a majority in the corpora- 
tion, the fame mayor might be continued for life, Thefe 
■are fome of the inconveniencies which would follow from 
fuch a right vefted in the corporation, and there can be 
none from their hot pofieffing it. 

itfwrfwnf,— The queftion is, Whether the fuggcftion in [ 82 ] 
the writ is fufficiently denied ^ In all cafes, the party who 
applies for the mandamus is fuppofed to know his own title 
l)eft, and if the right, as he ftates it, is denied by the 
return, that is enoughs Unlefs the right is that which the 
party fays it is, in the writ, the court cannot know that 
he has any right, and the motives which influenced them 
in granting the writ would no longer exift. Here, the fug- 
geftion is, that Mitchell had been duly eleBed^ admitted, and 
/kuorrif and that he has been unjuftly removed. If he was 
not duly eleäed^ admitted, and fworn, the reafon for reftoring 
him ceafes. Had the writ fuggefted only that he was eleEied, 
it would have been a bad return, in fuch cafe, to have faid, 
that he was not duly elefted, for that would then have 
been a negative pregnant. In the prefent return, every 
thing on which Mitchell founds his title is denied. Is it 


[9] This rale was eftablifhed in tlie 1962. and explained in Rex v. IFilUam 
Winchelfea caufes, M. 7 Qeo. 3. 4 Burr» Rfgers, //. 10 Geo, 3. 4 Burr, z^zz. 

Vol. I. . G 


1 7 7^» ^^^^^ ^o ^ contended, that nothing But the faO: of tii€ 
^ _ ^ removal can be qucftioned on a tnandatnus to reftore ? V 

I'hc King fo> i^ would not be competent even to deny that the party 
againft had ever been admitted. But I infift, that it is fufficient 
Lymb to deny any part of the title fuggeftcd, either tlie duenefo 
Regis. of the cleclion, or the duenefs of the admiflion. In the 
cafe of The King v. The Mayor of Lytwe^ of which Sir 
James Burrows has furniflied me with a note, and which 
IS alfo reported in Andrews {e)y Lord Chief Jußice Lee faid, 
that it was enough if any part of the fuggellion was de- 
nied. (UuLi^ER, Jiißice^ — " According to the note I have 
** of it," he faid, " if any tnaterial part was denied)." In 
the cafe of The King v. Sir Henry Penrice, reported in 
Strange {f)y it was held that if an immaterial circumllance 
is alleged, it is a good return to deny it, even though the 
anfwcr amount to a negative pregnant. (Willes, Juf 
tice, — " That was the cafe of a mandamus to admity* As 
to Hereford's cafe, it docs not appear there, nor in any of 
the other cafes mentioned there, that the writ fuggefted 
that the party had been dehito modo admiffusj or eUElus. In 
the cafe of The ^teen v. Ttvitty (g)y the fuggeftion being 
debito modo eleSluSy and the return mn dehito modo eleSuSy 
•Lord Holt faid, that was a good return, for it was an anfwer 
to the writ. That, indeed, was a mandamus to admit, but 
the reafon given will apply in the cafe of a mandamus to 
reftore. In The King v. Lambert (Ä), which is reported in 
L ^3 ] ' ^ Modern (/), the writ, which was a mandamus to reftore, 
was dehite eleBuSy the return nunquam debite eleiiusy and it 
was held good, ** becaufe it was a dire£l anfwer." If 
Lamherfs cafe^ which is reported in Carthew (i), is the 
fame, it is there, by miftake, called a mandamus to admit. 
(BuLLER, Juficey — <^ 12 Mod. ismot a book of any autho- 
" rity)." In the cafe of The King v. /////, in Shower (/), it 
.appears, from Lord Holt's argument, that the mandamus 
was to reftore, and there, likewife, non debito modo eJeBiis 
was determined to be a good return, and for the fame rea- 
fon, " becaufe it followed the writ." Stevenfon y. Nevenfon^ 
as reported by Lord Raymond {m)y was a matidamus to re- 
ftore, and It appears that, on the trial of the iflVes in that 
cafe, Mr. Serjeant Pengelly called witnefles to prove the 
due eleftion. In Craivford v. Powelly the writ fuggefted a 
due eleftion, and the return was, not duly cleöed, and 
was not objpäed to (//). All thofe cafes prove that the 
return may deny the fuggeftion in tlic very words of the 


{e) Ä. 11 Geo, 2. Andrews loc, {k) 170. 

(/) r. 18 Geo. 2. Str. 1235. (/) M.iW.l^M. i Sb. 253. 

(g) M. I Am». 2 Salk. 433. im) E. 10 Geo. 3. 2 Ld. Raym. 13?3. 

{b)M.2lV.^M. iStr.z%z. 

(0 12 AW. 2. C«)^.33£sf34G«.2. 2 -9»rr. 1013. 


Vrit« in 'Hilary 16 Geo. ^. f he King v. The Churchioar-' I77Q. 
idem rf TauntTn St. James [f 37], was the cafe of a fnart^ y_ _j 

damtu to reftore L^ C. to the office of fexton, fuggefting The Kinc 
thait he was duly elcfted» The return was, " Not duly againft 
** clcftcd," and it was held *o be good. (Buller, Jußice^^^ Lyme 
«* I avg«ied t*iat cafe, and this point was not made a quef- Recu. 
•< tion. The return alfo ftäted, that the fexton was re- 
** moveable at will, and die argument went upon the quef- 
•< tion whetbeT thofe two matters could be joined in the 
*• TCtürn.") The precedents in Tremayne and other books 
aibtd Ro atgttinent) for there is no fettled form for this 
writ in the Regifter, and it is always adapted to the cir- 
cumftances of the cafe. Either it is neceflary to fuggefl 
the duenefs of the eleftion, or it is not ; if it is, it is pro- 
per to deny it ( if it is not, they ought not to have fug- * 
gefted it. As to the fuppofied negative pregnant in the re- 
turn, t>ffc. that it admits that Mitchell had oeen in poflef- 
fion, that is not fo ; it admits no part of the fuggeftion ; 
neither his former admiifion, nor the removal. The fort 
«rf certainty required in returns, is afcertained by Lord 
Holt in the cafe of The King v. The Mayor of Abiftgdon (0), 
and it appears there, that when a thing follows by necet 
fary ixiference that will be fufficicnt. The court cannot 
intend from this retuni, that Mitchell had been in poflef- 
fion iefoBoy becaufe the only allegation of the writ is, that ['4 3 
he was duly in poCleffion, and that is fully denied ; yet^ all 
the arguments of inconvenience proceed upon the fuppofi- 
tion, that the return admits a de fa6lo pofTeffion. On the 
other fide they have admitted, (by arguing the fufficiency 
of the return, and not traverfing it,) that Mitchell was not 
duly ele£bed. It appears, therefore, clearly, that he is 
without title, and, in fuch a cafe, although the return 
ihould be infufficient, the court will not award a peremp- 
tory mandamus ; Rex v. Tidderley (^), Bajfet v. The Mayor 
•J Batnßapk (7). 

Rooh^ in reply^ — It feems to be agreed, that a corpora- 
tion has no right to disfranchife its own members for want 
of title, and the only difpute now is, whether Mitchell was 
in poflefGon« It is faid that the writ fugjefts a due eledlion, 
which the return denies, and therefore nothing is admitted 
by the defendants j but if, knowing our own cafe, we have 
ftated it right, we ought not to be in a worfe condition, 
than if we had only faid that he had a bad title. They 
Ihould have denied either the faft of admiffion, or the fad: 
of removal -, for the right is immaterial. In the cafe of 


[t 37] S^**^ reported, Cowp. 413. (/) M. 12 Car, 2. i Sid. 14. 
(•) E. iz W. 3, 1 hd. Rajm. 559, (y) E. iS Car. 1. \ Sid. 286, 

G ^ 


1770« ^^' ^'^^ ^' ^*' ^'^y ^ Chefler (r) the court cxprcfsff 

,^ Ä makes the diftin^ion between a mandamus to reftore, and 

The Kino a tnandamus to admit; and, wherever a cafe of mandamus 
againÄ has been decided with that diftinäion in view, and upon 
LvMB folemn argument, I will venture to affert that non deHt» 
Kegis. fnodo eUBuSy admtjfus^ et juratus^ has not been held' to be a 
good return to a mandamus to reftore. All the cafes cited 
on the other fide, which relate to offices not corporate, arc 
befide the prefent queftion. The rights of churchwardens^ 
fextons, and coroners, cannot be tried by quo warranto s 
therefore, where there are diiFerent claimants, the court 
will grant a mandamus to each, and let them litigate the 
right in that manner. If we were to take iffue on this re- 
turn, and go to trial, and obtain a verdiä, the court could 
then only grant the peremptory mandamus on the ground of 
prior pofleflion, for the right could not be queftioned at the 
trial. The corporation cannot conteft it at all ; the King 
only by quo warranto. The conclufion of the return is» 
that they cannot reftore Why ? Becaufe Mitchell was not 
duly elected. That inference is not true, for they mud 
reftore, if there has been a de faBo eleäion. The return 
at moft denies the aäual pofleffion only by argument» 
which is infufficient ; for Lord Holt fays, tnat the certainty 
in returns fhould be as great as in indiäments. 
£ 8 J ] Lord Mansfield, — I have often faid, that I was particu* 

larly anxious that every part of corporation-law (hould be 
fettled on clear and certain principles, and not on nice fub- 
tleties and verbal diftin£lions. We will therefore confidcr 
of this queftion. At prefent, it ftrikes me to be fufficient 
if the fuggeftion of the writ is fully denied, whatever that 
is. I am not thoroughly aware of the fenfe and meaning 
of the diftinäion between eleäed and duly eleäed; be- 
caufe it feems to be a contradi£Hon to fay, tnat a man has 
been eleäed, and at the fame time to fay, he has not been 
duly eleÖed ; they fccm to me the fame. On an iffue to 
try if a man has been ele£led, he muft prove a due ele&ion. 
In genera], where a perfon takes upon him to fuggeft what 
he was not bound to do, that may be denied. But another 
tiling ftrikes me at(f>refent ; the return (hould be fuch as» 
if true, would ftiew that the party has no right to be rcftor* 
ed, and therefore it ought to deny tlie material part. In 
the cafe of Lynne^ (a very full note of which Mr. Jußkc 
BuLLER has (hewn me,) they go very nicely into the 
arguments upon this head. There, it was denied that there 
was any admiffion. Here, they deny that Mitchell was 
duly elefted, admitted, and fworn, in the conjunftive. 
Upon fuch an iffue, he muft prove all the three allega- 
tions ; yet the duenefs of his eleÖion is immaterial, for the 
corporation could not judge of the title. I give no opinion. 

{y)M.(,W.}SM. sMiHl. 10. 


This day, his Lordihip, after dating the writ and return, 1 770. 
delivered the opinion of the court, as follows. y L j 

Lord Mansfield, — ^Thc queftion is, whether this is a The King 
fufficient return. The grievance complained of, by the againft 
perfon applying for tjie writ, is, that, having been' duly Lyme 
eleäed, admitted, and fwom, he has been removed by Regis. 
the corporation ; and thej are to (hew a juft caufe of re- 
moval. It is admitted, that they could not remove for 
want of an original title \ but it is contended, that they 
have fufficiently anfwered the fuggeftions of the writ, and 
that iflue may be taken, or an aäion brought, on the re- 
turn. Upon full confideration, we are all of opinion, that 
the return muft anfwer, not the words, but the materiality 
of the writ, and nothing fliews this more than the nicety 
in the cafes as to eleHed and duly eUEied. In the cafe of 
Ljnm^ the whole turned upon the queftion. Whether it 
was a return to the material part ? A return which feems 
to be guarded, and not to deny the fubftance, is bad, al- 
though I rather think nothing is an election but a due elec- 
tion. Here the material fuggeftion is the removal. They [ 86 1 
were not to judge of the title. The return is in the con- 
jonäive, — not duly ele£led, admitted, and fwom, — and, 
therefore, fallacious. If the truth would have warranted 
it, and they had returned not duly eleäed, or admitted, or 
fwom, it might have been good. We are all of opinion, 
that the return is infufficient, and therefore a peremptory 
tnandamus muft ifTue, 

Pevon and Another, AflSgnees of Gascoyne, ^^""^^J* 

a Bankrupt, againß Watts. 

lK an a£^ion of trover^ by the affignees of a bankrupt, a An afllgn- 
-* verdi^i having been found for the plaintiffs, and a rule |"^"^ ®* * ^ 
obtained to fliew caufe why there (hould not be a new ^ bankmpVs 
trial, the cafe came on to be argued this day, when the cftatc, made, 
queftion was. Whether, under the particular circumftances, in contem- 
an affignment of a leaC? which had been made by the bank- P^a^'o" o^ * 
rupt was an aft of bankruptcy ? hom"Äc 

Upon the report of the evidence, the fadts appeared to creditors, \% 
be. That on the 30th of Novfmber, Ga/coyttej the bankrupt, an aa of 
^nt for one -ftfo//, his attomey, to advife with him about bankruptcy, 
his affairs, when he (hewed Ha// a decree of the court of 
Chancery againft him, and told him, he had been ferved 
"with a fubpiBna^ and was threatened with an attachment, 
but was not able to pay the money. He afked Hal/y whe- 
ther his creditors could be forced to take a compoGtion, 
who told him they could not, and that, if the attachment 
jEbould iffue, he muft pay the money. He then told Hal/y 

G 3 • th^t 


I77Q» ^^^^ ^^^^ ^^ ^^^ creditors had looked into hie afiairs^ and 
y ^ _ 1 f they thought he could not pay above eight (hillings in the 
Devon pound. HaU, upon, this» advifed him to become a bank- 
againft rupt. He fent again for Hal/^ on the id of Decemkery and 
Watt I. then named to him fome creditors who had been long^great 
friends to him, and had indorfed bills ior lam which were 
not yet due, which would diftref^ them, and faid, that as 
he could not pay the bills, the only method by which he 
could fecure them, would be, by an affignment of the 
Icafe in queftion. On the 3d of Decembery Hall went to 
him again ; and was told by him, that Cox^ one of his 
creditors, had been with him, and had faid that Blake^ at- 
torney for CoKy thought matters might be fettled without a 
bankruptcy. At four or five o'clock in the afternoon of the 
3d of December^ the affignment of the leafe was executed to 
three of his creditors^ — If^atts, G'tlesy and HalL^^Aittr the 
L ^7 1 executipn of the affignment. Hall went to Blakey when,; 
upon his dating to him the fituation of Ga/coyne's affiurs, 
ßlah agreed it was proper a commiffion fhould be fued 
out. Some of the creditors were prefent at this meeting, 
and mentioned the leafe as a part of Ga/coyn/s eftate ; on 
which Hall told them of the affignment, but did not men^ 
tion when it was made. The leafe vras worth about 400 /« 
and was only affigned to fecure about 250/. and was then 
to be held in trull for the bankrupt, his executors, admi« 
niftrators, and alligns. The affienment recited that Giles 
had become fecurity for the bankrupt. Hall had lent hira 
money, and feveral bills and notes had been indorfed for 
the bankrupt, by WattSy GiUsy and Hally which remained 
unpaid, and he had agreed to affign the leafe, in order to 
fecure the payment of thofe debts, 

Diifming and Pechhamy for the plaintifFs. — The Solicitor 
Qeneraly for the defendant. 

For the plaintiffs, it was argued, that this was a fraudu«-^ 
lent conveyance within the flatute of 13 Eliz. f. 5. ; and 
that, by I Jac. i. f. 15, fraudulent conveyances arc made 
aös of bankruptcy. Three faäs arc clear: i. Gafcoyne 
was infolvent at the time of the affignment, for, by his own 
account, Jie could only pay eight Ihillings in the pound« 
2. He intended to prcicr the affignees of the leafe, to his 
other creditors, 3. When he made the affignment, he in- 
tended an aft of bankruptcy. In IVorßey v. Demattos (x), 
an affignment, by deed, of all a trader's ftock, though by 
way of fecurity, and for a valuable con fidcra tion, was heW 
to be an aö of bankruptcy. In Linton v. Barilett (/),, an 
affignment, by deed, of only cue third of the bankrupt's 
ctfccis, by way of fecurity, was determined to be an ad of 
bankruptcy« In the cafe of Ruß and Amtker^ Jßgnees cf 

(0 B. R.H.ii G. z. I lurr. ^67. (/) C. B. B. 10 G. 3. 3 ITilf. 47. 


PappSy V. Cooper J which was determined in this court T. 1770. 
17 Geo, 3. a parol affignment oi party as a fecurity to a * ^ _ . j 
creditor, and' under very favourable circumftances, but in Devon 
contemplation of an aft of bankruptcy, was held to be a againft 
fraud againft the bankrupt-laws, and therefore void [f 38], Watti. 
It was not an aft of bankruptcy, becaufe it was not by 
deed, but fuch an affignment by deed is in itfelf an adc 
of bankruptcy. 

For the defendant, it was faid, that the affignment was 
of real property, and there was a bona fide confideration 
for it. The circumftances of the overplus, after paying the 
creditors to whom the affignment was made, being limited 
to the bankrupt, (which was infifted upon on the other fide [ 88 ] 
as evidence of an intention to defraucl the other creditors,) 
is a proof of the fairnefs of the tranfaftion. It is like the 
cafe of a mortgage, where the mortgagee muft account for 
the overplus to the mortgagor, or thofe who Hand in his 
place. . If tHe furplus had been limited to the other credit- 
ors, or the affignces, that would have plainly (hown that 
an aft of bankruptcy was in contemplation, JVorfiey v. 
Demattos went on the particular circumftances of the cafe, 
which were very ftrong, but it was not there laid down, as 
a general rule, that a bona fide affignment to a fair creditor, 
even though in contemplation of an aft of bankruptcy, is 
void. Rufi v. Co^r differed from this cafe, fpr, there, it 
was clear the bankrupt could not ftatid longer than the 
Satin-davy and the order was fent, by exprefs, tq deliver the 
goods befote that time. The creditors, here, were in- 
formed of the affignment, and did not objeft to it. It 
was faid, this affignment was a fraud, in particular, upon 
the creditor under the decree and attachment, but be 
could not have taken the leafe, if there had been no af« 
(ignmcnt, the attachment being only an execution againft 
the pcrfon. 

Lord Mansfield faid, he continued of the fame opinion 
which he had entertained at the trial, viz, that this was a . 
fraudulent deed, and an aft of bankruptcy. He thought 
it was fraudulent on two grounds : i. It was fraudulent 
againft the creditor under the decree. The court of Cian^ 
eery would have relieved him againft the defendant, and 
given him the benefit of the leafe, notwithftanding the af- 
fignment was for a valuable confideration ; for if any man, 
knowing of a judgment, or a decree, purchafes, though 
for a full value, the purchafe is fraudulent and void. This • 
was cftabliflied in Twyne's Cafe («). The creditor in equity 
might have had a fequeftration of the leafe. 2. In the 
Other view, the affignment* was a clear fraud againft the 
general creditors under tlie bankrupt-laws. The bankrupt 


[f 38] Since reported, Co^vf. 629. (a) M. 44 £//«. 3 Co^ 80. *• 




again ft 



was advifed, and agreed, to have a commifTion fued out » 
and, after that, made the affignment. It was faid, th<^ 
creditors were told of the amgnment. The manner ii^ 
which they were told of it was tjic word part of the cafe ; 
for the bankrupt concealed from them, when or how it; 
was made, and they had no reafon to fuppofe that it was; 
not made long before. All amicable commiflions arc agreed," 
to by the creditors, on the idea that there is to be no 

BuLLER, Juflice^ obfepred,. that tjie preference given to 
the defendant, and the two other affignees of the leafe, 
was voluntary, for they had not applied to the bankrupt 
for payment of their debt. The motive perhaps was not 
culpable, but the tranfaftion was contrary to the general 
policy of the law. 

The rule difcharged [f 39]. 

[t 39] Since the former edition of 
thefe Reports was publilhed, the fol- 
lowing important cs^fe has been deter- 
mined in the court of King*s Bench. 

Hassel LS and Another, Affignees of 

This caufe came on in M. 21 Geo. 3. 
before his Honour the late Mailer of 
the Rolls, (Sir Themas SeweüJ who 
direded an ilTue to try the following 
qaeftion ; w«.* •* Whether Jackfin 
was a bankrupt, within the true intent 
and meaning pf the feveral fbtutes 
made relating to bankrupts, at the 
tiine of the execution of a certain in- 
denture, dated the 14th of Auguß 
1773, and made between the faid 
Jackfint (therein dcfcribed to be a mer- 
cer and grocer,) of the one part, and 
the defendant on the other part, wit- 
neiling» among other things, that the 
faid Jack/on had fold and delivered to 
the faid defendant, all the houfehold- 
furniture, goods, chattels, and perfon- 
al cftatc, of the faid Jack/en, (except as 
therein excepted,) fubjeÄ to the pro- 
vifo therein mentioned?" 

The trial of this iflue came on, at 
the fpring aflizes for the county of 
Stafford y 21 Geo, 3. before Naresy Juf- 
tice, when a vermd was found for the 

In Eaftcr Term following, Houüorth 
obtained an order, in the court of 
Chancery, to fhew caufe, why there 

ihould not be a new trial ; which 
was afterwards areued, oh the 2ifl or 
June, 21 Geo, j. but the Lord Ghan-^ 
cellar did not deliver his opihioti till 
Jpril, It Geo. 3* when the order was 
made abiolute. 

The fecond trial came on before the 
fame Judge, and a fpedal jury, at the 
fummer aSizes for Staffordjhire ; and, 
upon that occafion, a cafe was referve^ 
for the opinion of the court, ^he pur- 
port whereof was as follows : 

Ralph Jaekfcn, of//, in the county of 
Stafford, grocer, was, on the 28th of 
November 1 777, being the day on 
which the commiiTion of bankrupt if- 
fued, a trader, within the true intent 
and meaning of the feveral flatutes 
made, and now in force, concerning 
bankrupts. He became indebted to 
the pcntioning creditor, in loo /. by 
bond, bearing date the 1 3th of Auguß 
1 770, and payable on the 1 3th ofFehru- 
ary 1 77 1. Some days previous to the 
1 4th of Auguß 1773, he applied to one 
Child, an attorney and conveyancer, 
to propofe an indemnity to Simp/on^ 
the defendant, againll a bond in which 
Simpßn had joined with him, to a Mrs. 
Bßrtlom. At the time of this applica- 
tion, CUld, to whom he was quite a 
ftrangcr, aflced him what property he 
had; and he anfvvered, that he had 
the newly built houfe, mentioned in 
the indenture of the 14th of Auguß, 
177t, betides his houfehold goods and 
Aock in trade. He had no writings 


yhh him. Child then afked« Whe- 
ther he had any objedion to include 
the hooTehold goods and ftock in trade, 
in the indemnity ? \it faid, he had 
not ; and that be had drawn rather too 
jnuch money out of trade, toward« 
building the hooTe ; ^ that the mo- 
ney borrowed of Mrs. BartUm, and 
for which Simpfim had )>ecome bound. 
Was to replace the money fo taken 
out of trade ; and that he wiihed to 
indemnify Simp/om^ in fuch manner as 
thiU (hould think feafonable and ri^ht. 
7*hereupon, Child prepared the inden- 
ture in quefiion. 

■ It rcated, Thj^t the defendant, at 
the inftance and requeft of Jack/on^ 
^xA for* his proper debt, together with 
Jackfont was, by a bond of the fame 

date, bound to Mrs. BartUm, in the 

penal fum of 400/. conditioned for 

Qie payment of ^00/. with interell, 
on the .14th of the enfuing February ; 
that it was agreed between Jack/on and 
the defendant, before the execution of 

the faid bond, that the defendant, his 

heirs, executors, and adminilb-ators, 

Ihould be fufficiently indemnified there- 
from, out of the copyhold and perfon- 

id eftate of Jackfon therein mention- 
ed ; and that he (hould furrender, 

grant, and affign, the fame to the de- 
fendant, his executors, adminiflratoi-s, or 
afligns, in fuch manner as he or 

f 90 ] they (hould dircft, for the pur- 
pofe aforefüd . Ic then witneffed, 

that, in purfuance, and in part of the 

performanc eof the faid agreement, and 

in order to indemnify the defendant, 

his heirs, executors, and adminiflra- 

tors, from and againft the faid bond, 

and the principal and intereft thereby 

fecured, and all coils, charges, and 

trouble, any ways concemine the 

fame, the faid Jackfon, for himfelf, 

kis heirs, executors, adminiftrators, 

and affigns, did covenant with the de- 
fendant, his heirs, executors, and ad- 

ininiftrators, and every of them, that 

the faid Jackfon and his heirs, and all 

other perfons having any eflate or in- 

tcrcft in the copyhold premifes therein 

after-mentioned, (hould, at his and 

their cofts and charges, within three 

months after the date of the faid in- 

dfuture^ at fome court baron, to be 




again fit 


held for the manor of 
Newcaßle under Lynne, 
furrender into the hands 
of the lord of the faid 
manor, or of his ftew- 
ard, according to the 
Cttftom of the faid ma- 
nor, free from all incumbrances, aO 
that new ereded copyhold mefifuage» 
fituate in S. within the faid mamor, 
then in the occupation of Jackfon , or 
his under-tenants or affigns, together 
with all barns, (lables, lie, thereto 
belonging, to the ufe of the defendant» 
his executors, adminiflrators, and af- 
figns, for the term of 500 years, to be 
computed from the date of the furren- 
der; provided, that if Jackfon» hit 
heirs, executors, or adminiftrators, 
(hould, on or before the 14th of Fe* 
hruary next enfuing, pay the faid 200/« 
and intereft to Mrs. Bartlom, and, 
in the mean time, and until payment 
thereof, (hould fave harmlefs, and 
keep indemnified, the faid defendant» 
his heirs, executors, and adminiflra- 
tors, and his and their goods, chattels» 
lands, and tenements, vrom and againft 
the faid bond, and the principsJ and 
intereft thereby fecured, and all cofb» 
charges, i^c, concerning the fame» 
then the faid indenture, and the fur* 
render fo to be made, ihould fi-om 
thenceforth ceafe, determine, and be- 
come void. Then there was a cove- 
nant by Jackfon to pay the 200 /. and 
interefl according to the (aid ppviib» 
and that he had done nothing to charge 
or impeach the title to the faid mef- 
fuage. The indenture then further wit- 
ne(red, that, for the fame con(iderations» 
and in further part performance of the 
faid agreement, Jackfon did bargain, 
fell» and deliver to the defendant, )^ 
executors» adminiflrators, and a(Ggns, 
all the houfehold-fumiture, goods, 
chattels, and perfonal eftate, of the faid 
Jackfon therein mentioned ; that is to 
fay, iic. (here followed an inventory 
of furniture in Jackfon*^ houfe), and 
all other the goods, chattels, (lock in 
trade, and perfonal edate, whatfoever, 
of him the faid Jackfon, fituate at 5.. 
aforefaid, or elfe\%'here in the kingdom 
o^ England, (wearing-apparel except- 
ed,) to hoid the fame, to the defend- 





ant, his executors, ad- 
miniftrators,- and sf- 
figTis, for ever, Aibjedt; 
neverthelcfs, to tHe 
provifo aforefaid ; and 
the faid Jack/on did 
thereby grant to the 
ds&fendant^ his executors, adtniniilra- 
torsy and affigns,. in default of the pay* 
roent of 200/. and intereft, on the day 
mentioned in the provifo, full power, 
at any time or times, to enter into the 
povmifes of the faid Jackfon, and- to 
take, carry away-, and fell, any of the 
faid goods and chattds. Then Jackfottr 
by the faid indenture^ for himfelf, his> 
heirs» exetutors, and admiiiiflrators,' 
covenanted with the defendam, his 
executors, adrainiftrators,- and alTigns, 
that they would warrant' arid defend 
the i^oods and chacteis fo bargained 
aadiold to the defendant, his execu- 
tors, adminiilrators, and affigns, fbb- 
}%€l to the faid provifo, againft him 
the faid jAck/on, his executors and ad- 
miniib'atorsi and every other perfon 
and perfons whatfoever ; of all which 
flDOdt and chattels the indenture dated, 
that the faid Jackfon had put the de- 
fendant in full pbHe{fion>.by delivering 
to him a filver tea-fpoon, in the name 
of all the faid goods aadchattels, at the 
fealin^ and delivery of the faid indenture. 
This indenture was duly executed 
by Jack/on. A comPJifEon of bankr- 
rppt, bearing date the 28th of No- 
*utntbert lyGeo,^» iiTued againft him; 
and his eftate and eifc^s were afligned 
by the commiffioners to the plaintiffs, 
on the 3111 of Decemhety 17 Geo, 3. 
Jack/oitf at the time of the execution of 
the indenture, was in fall credit. The 
houfe therein mentioned was then 
worth 400/. and his perfonal eftate 
worth 3ooA more. He continued in 
trade, and in credit, until the month 
of Odober 1776, 

I'ho quefUon dated for the opinion 
of the court was the fame with that con- 
tained in the terms of the iflue. 

The cafe came on to be argued , Af . 2 4 . 
G«. 3 . on Tuefday the 2 5 th of Noraemhery 
by Naret for the plaintiffs, and 
[ 91 ] B^wer for the defendant ; but, 
it being alleged, on the part of 
the defendant, that Jack/on was worth a 
j^eatdeid more than the money borrow- 

ed of Mrs. Barilomy at the time of the 
execution of the indenture, and that it 
did not appear, on the cafe, that he 
owed any thing at that time, but that 
debt^ and that due to the petitioning 
creditor ; the court dircöted the argu- 
ntem to ftand oVer till the next term ; 
and that, in the mean time, the parties 
fltould enquire, whether Jackßn owed 
any other d^bts at that time, and, if 
it ihoul4 appear that he did, that an 
addition, ft^ting fuch other debts, 
fhoald be made to the cafe. 

No fuch addition, however, was 
made, and the cafe came on again for 
argument, in /^, 24 Qeo, 3. on Tuefday^ 
the 3d of February, 

Lord Mamßeld dhre^led Banver to 

Me inforrrred the court, that, in 
confcquence of what had pafTed laft" 
tern*, there had been an attendance at' 
J?Ä//w'Juftice's chambers ; and'thatthc 
defendant had there offered to admit 
any debt, previous to the execution of 
the indenture, which the plaintiffs^ 
fhould verify by affidavit, and that 
they had not attempted to prove any 
in that manner, llie defendant, ho 
faidj cannot prove a negative; and» 
therefore, the court will prtfome that" 
Jackjhn was no othenvife indebted than 
as is ibted in the cafe. — (Lord Manf-^ 
ßüdy — «* The court will not prefumo 
one way or the other ; the cafe only 
fays. Jack/on was in good credit ; a 
man may be inverygoodcredit,and yet 
owe a great deal.**) — This cafe has 
been twice before the Chancellor on 
the fame ftate of fa6ts -that appears 
now before this court ; and his Lord- 
fhip ftrongly inclined to think there 
was not enough to eftablifh an a6l of 
bankruptcy. The queftion is. Whe- 
ther the aflignment and conveyance, 
contained in the indenture in queftion, 
being exprefsly ipade as an indemnity 
to the furety, is fuch a conveyance as 
conftitutes an aft of bankruptcy, with- 
in the meaning of th« ftatutc of 
1 J^c, I, f. 15. § 2. the words of 
wnich are, ** or make, or caufe to be 
'' made, any fraudulent grant, or 
" conveyance, of his, her, or their, 
*• lands, tenements, goods, or chat- 
«' tels, to the intent, or whereby, his, 
** her, or their^ c;:editors (hall or may 

M be 



«» be defeated or delayed^ for the rc- 
•« covery of their joft and true debts ?'* 
As to adlual fraud, or undue prefer- 
ence, no fuch thing- was pretended, or 
attempted to be proved. Jackjon does 
not appear to have owed more than 
300/. to all the world at the time; 
and this cafe differs materially from all 
the others which have arifen on this 
daufe of the ad of parliament, in this 
circUmftance, that the party, to whom 
the conveyance was made, was nor a 
creditor at all at the time, nor then 
likely ever to become a creditor. It 
is not (lated that he ever did, and, in 
b^iy he did not, become a creditor till 
after the commiflion of bankruptcy if- 
fued. It may be proper to mention 
the leading caies, to fhew how much 
they arc diftinguiihable from the pre- 
fent. In Woijky v. Demaitos {a) , the 
conveyance was,Nit is true, an indem- 
nity ; but it was mtide at a time when 
^>e bankrupt was fo much indebted, 
as to be uitableto carry on his trade, 
v4thout the aififtance of Demattos ; and 
it was made for the purpofe of being 
a- floating fecurity to him, for con- 
tingent acceptances of bills to be drawn 
upon him by the bankrupt. There 
were, befides, many circumftances of 
fraud in that cafe; In Linton v. Bart- 
let (A), the afltgnment was to an ac- 
tual creditor at the time, and was 
made when the party was infolvent, 
and on the very eve of abfconding to 
avoid his creditors. In JVilfin v. 
■^^(0» the party was infolvent at the 
time of the alignment; it was execut- 
ed undcrvery fraudulent circumftances, 
to proteft, and prefer, a favourite 
creditor ; and only a few days before 
the bankrupt abl'condcd; In Compton 
V. Btdfard (J), the bill of falc was, in 
like manner, executed under the im- 
prefiion of an immediate infolvency, 
to give a preference to favourite cre- 
ditors, and the very day before the 
party abfconded. Thefe arc all the 



material cafes, except 
that of Laiv v. Skinmrp 
which (hall be men- 
tioned afterwards. Jn 
the prefent cafe, the 
defendant could not 
have taken poffeflion 
of the eftate, or good^, underlie in- 
denture, at any one time, prior to the 
commiflion. if he had, the eftate 
might have been recovered from him 
by Jackfin, in ejeftraent, and thegoodÄ 
in trover ; for the court will not 
permit a truftee to keep poifeflion [ 92 ] 
againft his ceßui que truft (f). It 
may he faid, that the leaving Jackjhn in 
pofi'eflion gave him a falfe credit. But 
will it be contended, that his credit 
would have been worfe, if the tranf^ 
action had been publicly known ? If 
Mr. Hoarty the banker, were to make 
an affignment of all his property to 
fccure the payment of 20 /. would 
fuch an a£l, when known, hurt his 
credit, or make him a bankrupt f 
The circumftance of the amount of 
the debt in proportion to die property 
is what afle&s credit, not the ampoont 
of the fecurity. As to the cafe of 
Lan» V. Skinner (/), it was decided otf 
a principle which certainly is not law; 
for the Chief Juftice is there made tor 
fay, that the queftion turned upoff 
this, '• Whether the deed did not, 
ipfo fa^o, create an infpheney in the 
trader ? that, if fo, it was dearly an* 
ad of bankruptcy (^).'* — (Lord: 
MansßeUy—*' You are right ; a matr 
may be infolvent, without being- a 
bankrupt ; and a man may become a: 
bankrupt, and yet be able topay 257. 
in the pound. The reafon why a man 
becomes a bankrupt, who conveys* 
away all his property, is, that he 
thereby becomes totally incapable of 
trading.") — Here, the provifo would 
have prevented the defendant from 
entering or taking poflfeflion at the 
time of the execution of the inden- 
____ ture; 

{a) B. R. H. 21 Geo. 2, 1 Bu7'r. 


{&) C,B. H. loCreo.n;. ^JVii/, 47. 

(r) jff, Ä. r, 32 b' 33 Geo, 2. Z Burr. 

{d^ Guildhalh after H. 2 Geo, 3. 
coram Lord Mansfield^ I Blackß, 362. 
(e) Infra, p. 695. 
(/) C. j5. £. 1 5 Geo, 3 . 2 Blackß, 996. 
{g\ zBlacl^/l.Lc.^si* 






Watti . 

turc; therefore the de- 
fendant could not have 
pipped JacA/on's trad- 
ing. To hold him to 
have become a bank- 
rupt by the aifign- 
xnent, the court muft 
fiecidt, that the defendaat could have 
taken pofleffion under it. But he 
could not. If he had^ it would have 
been a tortious a£t, and he would 
have been liable to be fued for it, at 
fuch, b/ Jackfin. 

Nares, for the plaintiffs,— The 
Matter of the Rolls declared a pretty 
ftron^ opinion, that the aflignment| 
in this cafe^ wiis an adl of bankrupt- 
cy, an4 üie Chancellor gave no opi- 
fuon to the contrary: He only ex- 
prefled doubts on die fubjeä. Jack^ 
/oM9 at leail, owed 100/. to the peti- 
tioning creditor at the time of the s^- 
fi^nment, and that conveyance cer- 
^mly tended to delay him in the re- 
covery of his juil debt. The inftant 
2ack/bH failed in the payment of the 
}na-(Iebt to Mrs. Bartkmp the de- 
fendant had a right to take poflef- 
fion under the ^gnment. Law v. 
$kimur was tl|e folemn and unani- 
mous deciifion of the court; and 
this is to the full as fbx)ng a cafe as 
that was. There, the bankrupt con- 
tinued in credit near two years after 
the afiignment. A conveyance of 
fart of a trader's property may be 
fair ; a conveyance of the wboU muß 
^e againft the ft^tute. 

Bowir, in reply, contended, that 
the execution of the aflignment mufl 
have been an z£k of bankruptcy, at 
the time when it took place, or could 
not become fo afterwards. 

Lord Matfsfiild,'-'! have endeavour- 
ed to find but where there can be a 
doubt in this cafe. A fraudulent dif- 
pofition of a trader's property is void 
againft his creditors ; and, if it is 
done by deed, it is by force of the 
itatute of James an aft of bank- 
ruptcy. In the prcfent cafe, the af- 
ügnment is by deed ; and what has 
the trader done bv that deed ? Why, 
to fecure the defendant againft the 
confeq\|cnces of being furety for him. 

he conveys a copyhold eftate^ ;^nd alio 
all his goods, furniture, flock, &c. to 
the defendant. He enumerates the 
goods fpecifically, and in deuil, an4 
gives a fham poiTeflion, by delivering 
a fpoon. It has been fettled, over 
and over, that, if a trader makes a 
conveyance of all his property, that 
is, inftantly, an adt of bankruptcy* 
It b fraudulent : it deftroys the ca- 
pacity of trading. In this cafe, Jack^ 
Jon 90uld not fairly fell an ounce of 
merchandize after the aiTignment. 
The whple belonged! to another man. 
It was a fraud in Jackfon to deal with 
any body as a trader. There is an« 
other ground. Y^y the allignment 
Jackfon defeated every other cre- 
ditor. The petitioning creditor was 
deprived of the benefit of an a£Uon. 
There was nothing left for hini to 
take in executk)n, if the deed waa 
valid. But it may be faid to have 
been void againft creditors, and that 
the goods might ftUl have been taken 
in execution, under the (btute of 
Queen Elizabeth {b). If fo, it was 1^ 
fraudulent, and therefore an a£l of 
bankruptcy, under the ftatute of Janus. 
It makes no difference that Simpfom 
was not a creditor at the time. It was 
a preference to him, when he (houid 
beconie a creditor. Another thing : It 
does not appear that Simf/onzp^ 
plied for, or knew of, the al- [ 93 ] 
fignment. Jack/on fent for the 
attorney, who, I think, blondefed. If 
he had only made a conveyance of 
copyhold eftate, it might have made 
a oifFerence ; though 1 give no opinion 
on that head. After the number of 
cafes that have been decided, 1 can 
have DO doubt. "We muft not always 
rely on the words of reports, though 
under great names : Mr. Juftice Black- 
ßone's reports are not very accurate. 

fTtiles, Aßburß, and Buller, Juftices, 
concurred in opinion with his Lordfhip. 

The poflea to be delivered to the 

The caufe, I believe, has never 
fince come on in the court of Chan*» 
eery, for farther direftions. 

Vide alfo Butcher v. Eaßoy iV/. zq 
Geo, 3. in/rat p. 282. 

ifi) 13 Eliz. c. 5. 


CoGHLAN agatnß Williamson. ^afS' 

tN an aftloA of debt upon a bond, tried before Lord IntnaÄion<m 
-'' Mansfield, on a plea of non eftfaBum^ it appeared, by * f**"i«*? ^ 
the bond, that the fubfcribing witnefs was one Steele. He ^miflion «f 
was not produced, but the plaintiff proved that one Steele the debt >• 
had gone to the Eafl^Irdles about five year9 ago as a cadety proved, and 
in a (hip in which the defendant was purfer. Enquiries J?*" ** ^"^ 
had been made after him, and it did not appear that he .nVft cilnnotbe 
had ever returned, Webb^ a captain in the Eaft^India got, it will 
Company's fervice, faid he was in the trading way in Indiiu be fufficient 
The plamtifT had applied to the defendant to fettle the ^?f^^\^ ^^ 
bond, Mrhcn the defendant offered to pay 80/. immediately, hM^wriüng, 
and to fettle the reft of the debt, with intereft, at the 
end of the year. The plaintiff refufed to agree to this 
propofal, upon which the defendant faid, that he could 
not recover, for the bond was executed on (hipboard, and 
that he could not get the witnefs. The defendant's hand- 
writing was proved, and alfo a receipt, and fubfcription to 
a bond to the Eafi-India Company, bjr Steele. — Upon tbi« 
evidence. Lord Mansfield direfted the jury to find a verdiü 
for the plaintiff; and, now, upon (hewing caufe againft 
a rule for entering a nonfuit, the queftion, Whether, luider 
the above circumftances, the evidence of the defendant^ 
hand-writing was admilBble ? came on to be argued by the 
Solicitor General and Davenport^ for the plaintiff and Dun» 
fling and Morgan^ for the defendant. But the counfel for 
the defendant thought it was impoi&ble for them, after the 
admiflion by the defendant, as above ftated, to fupport 
the rule. 

The rule difchargcd, with cofts [(ö*]. 

[!:>] Vide Zord Ferrers V. Shirley, when the fubfcribing witneiTes rcfidc 

£.K,H. j^Geo.2. fitzg. 195, 196. Gould there, are made evidence in Great Bri^ 

V. Jones, tr. 2 Geo. 3. Law of A^. Pr. tain, on proofs of the hand- writing of 

«36. By26Geo, 3. cap. 57. $ 38. bonds the parties and of the witneffes. 
and deeds executed in the Ea/f Indies, 


^f^: BoYCE q^al^ Whitaker. 

If the defend- 'T^HIS was an aftion of debt on a bail-bond, brought by the 
to S^^th the plaintifF, as alTignce of the (heriff of Kent. The defendaat 

ibnite of ^t Played oyer of the bond and condition, and fet forth the cou^ 
H. «. c. 9. m dition, which was in the ufual form,and thcnp/eadeäy *« That, 
• PJ«»*o an *< before the making of the wtiting, obligatory aforefaid, to 
^^ff»**bo*d ** ^^^* ^y * certain aft made in a parliament of the faid 
a mlfrecrtiH»' ** Hfury the 6th, held at Weßmvißer^ in the county of 
fetjil.-»If the ** MiddlefeXy on the 25th day of February ^ in the 23d 
replicatioD « year of his reign, it was, among other things, enafted, 
conclmde with «c jjy ^^ authority of the fame parliament, that no fherirf, 
it will be bad " under-lheriff, (herifPs cleric, fteward, or bailiff of fran- 
»pon fpecift] * ** chife, fervant of bailiff, or coroner, ihould take any 
demurrer. «« thing by colour of his office, by him, nor by any othef 
^ perfon, to the ufe of any perfon, for the making of any 
^< return, or panel, and for the copy of any panel, but 
•* fourpence. And that the faid Iheriffs, and all other 
** officers and minifters aforefaid, ihould let out of prifon 
«• all manner of perfons, by them, or any of them, ar- 
«^ refted or being in their cuftody, by force of any writ, 
** "bill, or warrant, in any aftion perfonal, or by reafon of 
« indictment by trefpafs, upon reafonable furetiea of fuffi- 
** cient perfons having jLufficient within the countie» 
^< where fuch perfons be let to bail, or mainprize, ta 
** keep their days in fuch place as the faid writ, bills, of 
** warrants, ihould require 5 fuch perfon or perfons which 
*' were or ihould be in their ward by condemnation, ex- 
•* ecution, capias utltgatum or excoinmunicatum^ furety of 
*« the peace, and all fuch perfons which were or ihould 
** be committed to ward by fpecial commandment of any 
** juilices, and vagabonds refufmg to ferve according to 
•* the form of the ftatute of labourers, only excepted. And 
*' that no iherifF, nor any of the officers or miniiters afore- 
«' faid, ihould take, or caufe to be taken, or make any 
«* obligation, for any caufe aforefaid, or by cdour of their 
** office, but only to themfelves, of any peribn which 
*' ihould be in their ward by the courfe of the law, but 
" by the name of their offices, and upon condition writ- 
** ten, that the faid prifoners ihould appear at the day 
** contained in the faid UTit, bill, or warrant, and in fucn 
** places as the faid writs, bills, or warrants, ihould re- 
** quire. And if any of the faid iheriffs, or other of- 
*' ficers or miniflers abovefaid, take any obligation in 
** other form, by colour of their office, that it ihould be 
*' vgid, as by the fame a6t, among otlxer things, more 
13 « fuUj 


*< fully appeared :*' That the defendant was anrefted at the j 77g. 
faid time of making the faid writing obligatory, (6th Jfu/y ^ ^ 

1778,) by the fheriff of Keftt^ on a pittrie^ latitat return- £oyc< 
able on Wedtufday next «after three weeks of the Häy Tri-- againR 
fHty{i'j']S)y and that the iheriff, upon that aireft, took Writakir« 
bail, the writing obligatory aforefaid, with die condition 
aforefaid, for €aß and favour to the faid defendant of his im- 
prifonment by tlie faid flieriffihewn, and to have and obtain 
his deliverance therefrom ; which faid writing obligatory 
the faid flierift' took by colour cf his office^ againft the form 
of the ftatute aforefaid, — ^The plaintiff replied^ that the de- 
fendant, before the return of the writ in the declaration 
mentioned, to wit, on the dav of the date of the bond, 
ioiz, 4th July 1778, as bail for his appearance at the re- 
turn of the writ, iealed, and, as his a£b and A^^^ deli- 
vered, the bond, in the manner in the declaration men- 
tioned, fwithoiit tbhy that the faid flieriff, upon xkz arreft 
of the defendant in the plea mentioned, took bail, tiie writ«- 
ing obiigatory aforefaid, with the condition aforefaid, for 
eife and favour to the defendant of his imprtfonment by the 
faid fheriff fhewn, ia manner and form, (ifc. and " this the 
'* faid defendant is ready to verify/* — ^To this replication the 
defendant demurred s and fhewcd for caufe, «^ That the 
f' replication, denying the whole fubftance of the plea, 
** concluded with a verification, and to the court j whereas 
•' it ought to have concluded to the country." 

Baldwitij for the defendant, contended, that this cafe 
was within the reafoning and general principle laid down 
in Trapaud v. Mercer (v), viz. <^ that, wherever there 
" is an affirmative and a negative, the conclufion ought to 
** be to the country." He faid, that the plea and replication 
here were analogous to the pleas and replications in aöions 
on the ilatutes againil gaming and ufury ; and that, in thoic 
caCes, the replication always concludes to the country. He 
alfo cited, as in point, a cafe of Aß v. Walker y which had 
been determined in this court laft term. 

Morgan J for the plaintiff, infifted, i. That the conclu- 
fion of the replication was right. 2. That the pica was 
bad, and therefore at all events t}ie plaintiff would be en- 
titled to judgment, i. As to the firft point, he pited 
Foden v. Haines in Carthnv (w), where, although there 
was a demurrer to a replication like the prefent, and which 
4:oncluded with a verification [ i o], no objcüion was made 


(a/) T. 23 ^ 34 ^- 2. 2 Burr, that cafe, coticludsd with a verifica- 

1022. tion. hlorgan inferred that it did, 

(w) J?. Ä. E. 6 IV. y A/. CartL probably becaufe of the traverfe ; but, 

^00. although it is a general rule that 4 

[10] It is not dated, either in Cfir^^^w traverje rauft conclude with a vend- 
or Comberhaich, that the replication, in catioQa yet it qs^y, and« when it com- 




on that ground ; and he obfervcd, that,' by the report of 
the fame cafe in Comherbatch (at), the court is ftatcd td 
have faid, that the plaintiff fhould have alleged, that the 
bond was pro bono et vera deUio, 2nd then traverfed the eafe 
WurTAKER. and favour. He aifo cited Lenthaiy. Cote, in Saiihders and 
Sidirfin (^), where the replication was exa£l]y fimilar td 
this, concluding with a traverfe of the eafe and favour,' 
and a verification ; and yet, on a fpecial demurrer, the 
prefent objeäion was not made. He mentioned alfo ai 
precedent of the fame fort in Afitm^s Entriet ^ title Debt (2).' 
2. He argued that the plea was bad on two accounts. In 
the firft place, becaufe the ftatute of Hen. 6. was mif- 
recited, there being two variances, viz. " indiäments by 
«< trefpafs," inftead of «* indidlments of trcfpafs" and " ca- 
«« pias uthgatunC^ inftead of ** capias uthgaium^ In the fe- 
cond place, he faid, the plea was bad, becaufe it averred 
matter dehors the deed, cpntradiAory to the condition ; 
for the condition ftated the bond to nave been taken for 
the defendant's appearance, and the plea averred it to have 
been for eafe and favour ; that, if the condition had been 
for the payment of money, eafe and favour might have 
been averred, becaufe that might not have been inconfift- 
ent. He cited^ on this head, 5 Com. Dig. 224. Cock v. 
RatcliffCf Cafes temp. Hardtuicie, 287. and Collins Yi Blah^ 
tern {a), [11]. 

Baldwiny in reply, obferved, as to the conclufion of 
the replication, that, in none of the cafes cited by Mor^ 
gan, the concluding with an averment had been a(Egned 
as a caufe of demurrer. With regard to the mif-recttals 
of the ftatute, he faid, that, if it is a public ad, the court 


»rifcs the whole fubftance of the plea, tion, that it was entered into as an in- 

It ought to conclude to the coun- demnification to the plaintiiF for a note 

try rt4o] ; Uaynxjood v. Da-vies, which he had given to a perfon to bribe 

1 Salk. 4. //. 10. Robinfon V. Railey^ him not to appear as a witnefs on as 

1 Burr. 316. indidlment. The plaintiff demurred 

(x) Comb. 24^. generally ; and it was argued, that thi» 

\y) M, 20 Car. 2. I Saund. 156. was an averment of matter in paisp 

I Sid. 383. dehors the deed, and therefore bad; 

(x) AJbton, 266, 267. but the court over-ruled the demurrer, 

\a) C. B. E, 7 G. 3. 2 fni/. 352. on the ground that the deed was void 

[11] That cafe was an a£lion on Si ab initio. Morgan muft have cited this 

bond, conditioned for the payment of cafe therefore by way of anticipation« 

a fum of money. The defendants and to diftinguiih it from that before 

pleaded, after fetting forth the condi- the court. 

[t 40] In MuUiner v. Wilkes, B. R. dude to the court ; and that, therefore, 

£,236^0.3. cited iw/tä, /. 414. BuU that was the fafeft way. [K^j Vide 

Ur, Juftice, faid, there is no cafe Hedges v. Sandon, B. R.E. 2S Geo. j. 

where it has been held, that a traverfe 2 Term Rep. 439, 
with an inducement (hould not con- 


>Ä'ould not take notice of them, and, if a private aft, the 
plaintiff ought to have replied " tiu! tie/ record** [f 41]. 

Lord Mansfield faid, that, if the defendant had unne- 
cefTarily fct out the aft of parliament, which it feemed to 
him he had, he would hold him to half a letter [12] j 
[o^] and that, as to* the other objeftion to the plea, a 
bond taken for the defendant's appearance at the return of 
the writ, could not be for eafe and favour, and, therefore, 
the condition and averment in the plea were inconfiftent. 

BuLLER, Jußice^ thought there was no doubt but the 
conclufion to the replication was bad, as the whole fub- 
ftance of the plea was denied ; but that it was unneceflary 
to look beyond the plea, which was clearly bad. He faid 
there were many cafes where the word " aforefaicT* had 
been held to tie the party up to an cxaft recital, and th( 
plea here concluded that the bond was taken " againft th( 
*' form of the ftatute aforefaidJ* 

Judgment for the plaintiff. 



[t 41] In the cafe of Rex v. WiUe, 
B, R, M. 21 Car. 2. 1 Lev, 296. 
which was an information under a /n- 
'vate aft of parliament, after verdift 
for the profccutor, on the plea of *« not 
*' guilty," a mouon was made in ar- 
reft of judgment, becaufe there was a 
miftakc in fetting forth the commence- 
ment of the parliament. The anfwer 
given was, that, being a private a6l, 
the court could not take notice of the 
miflake, on that motion, as it did not 
appear on the record, and that the de- 
fendant ought to have pleaded nultielre' 
coral but the court held that they were 
bound to take notice of the commence- 
ment, prorogations, and feffions of par- 
Jiameht. It feems to follow from that 
cafci that mifrccitals of private afts in 
oiher refpefts can only be taken notice 
of by the court, when there is a plea 
of nul tiel rectrd. Fide, to that cfFcdl, 
Piatt V. Hill, B. R. A/. 10 /T. 3. 
I Ld. Raym, 381. 1 SalJ^. 330. 

[12] Lord Mansfield afked, if there 
was any doubt whether the ilaiuie v;as 

ä public aft, and Davenport^ as amictts 
curia, faid it had been doubted, and 
was therefoie always fet out.— It is re- 
cited in the cafe of Lent hall v. Coke^ 
and alfo in Di<ve v. Maningham, 
Plo'wd, 60. 1^ But in Samuel v. 
Evans, B. R. T, 28 Geo. 3. 2 Term 
Rep. 569. the court held clearly, tha; 
it is a public aft, and therefore faid, 
that they would take notice of it though 
not pleaded. Qu. Whether the fame 
aft may ot be public as to fome claufes, 
and private as to others ? Fide Rex 
V. London, T. ^. fF. t^ M. Skinn. 
293, 204. 

[t^] Fide S. P. ruled as to the fta- 
t te ot Scandalum Magnat am, 2 Ric. 2. 
cap. 5. in Lord Cromwell* s Cafe, 
B. R. T. 20 Elise. 4 Co. 12. b. and 
Fif count Say and Scale v. Stephens, 
B.R.M. ^Car. 1. Cro. Car. i^^. 
and, as to this very ftatute of 23 Hen. 6. 
in Trubel v. Jßon, B. R. M. 30 El. 
Cro. £1. 108. Fide alfo Hd^ v. 
Bray, B. R. H. 19^ 20 Car. 2. i 
Sed. 356. 

Vol. I. 




1 ucfday, 91U COTTEREL againj HOOKE. 

^^'h" ^^A^^ A |N an a£lion of covenant, the pLiintiff declarc'dy That, irt 
alfo a^dced"of confidcration of 240/. paid by him to the defemiant, 
covenant fo ^^ defendant, by an indenture, bearing date the 7th of 
i<cure an an- July 1767, had covenanted, that he would pay the plain- 
miity, al- ^jff ^^ annuity during his life, of 40 /. a year, at four 

büntf ■ f *. quarterly payments, and that 60 /. of the annuity became 
fcitcd be/ore '^^ arrear on the 7th of April 1778. The defendant prayed 
a djfchargc oyer of the deed of covenant, which was fet forth^ and by 
under the in- whicli, after reciting that, for the better fecuring * the an- 
16 Geo'*^ c ^^^^1^ ^^^ defendant had executed a bond to the plaintiff, 
38. the party* bearing even date with this deed, in the penal fum of 400 /. 
may be fucd he afligned to the plaintiff, for hh farther fecurity, a falary 
wpon the cove- of jo /. which he enjoyed as one of the clerks to the audi- 
nicms bc/^^- ^^^ °^ impreft, and covenanted to pay the annuity by quarterly 
ix\g due after payments. He then prayed oyer of the bond, which was fet 
the difchHrge, forth, and alfo of the condition, which was alfo fet forth, 
* [ 98 ] and was. That, if the defendant fliould pay the annuity at 
the regular quarterly payments, and fliould perform all the 
covenants in the indenture bearing even date ivith the hond^ 
then the bond (hould be void. He then pleaded^ i. That 
the plaintiff ought not to have any execution againft the 
defendant, other than againß his real eßnte^ his money in the 
funds J or his money lent upon real fecurity only^ becaufe the 
indenture of covenant which he had fet fortli, and that 
mentioned in the condition of the bond, were one and the 
fame ; that the bond and deed of covenant were both givea 
to fecure one and the fame annuity j that, after the execu- 
tion of the deed of covenant, and the bond, and before the 
•ild of January 1777, mentioned in an a<ä, fej*r. (the in- 
folvcnt debtors* ati of 16 Geo, 3.) {by viz, on the 'jth of Ja-^ 
nuary 1776, 20/. for two quarters of the animity became 
due, and was not paid according to the tenor and effcft of 
the faid bond, whereby the faid bond became forfeited j and 
the penal fum became due and owing to the plaintiff,, 
and that, before the firft day of January 1776, the defend- 
ant was arreftcd, and in aäual cuftody of an officer of the 
flicriff of Middlefexy and held to bail by virtue of a bill of 
Middlefex, and that he furrendered himfelf in difcharge of 
his bail, and was, thereupon, committed to the prifon of 
the King^s Bench, before the 26th of June 1776, in the 
faid adt mentioned, viz. on the 17th of May 1776, and 
continued there till the time of his difcharge, and that, at 
the general quarter feffions for Surry, held, by adjourn- 
ment, oil tlie 29th day of July 1776, he wa« difchargcd, 



according to the form and eScGt of the faiJ aft ; and con- j 770. 

eluded with a verification, and prayed judgment if the ^ _ j 

plaintiff ought to have any execution againft him, other Cotter el 

than againß his real eftate^ is^c\ 2. That, before the 2 2d ajrainll 

of January lTj6f viz. on the 8 th of December 1775, he Hoc ice. 

was arreiled, t5*t. (ftating the arred, furrender, and dif- 

charge, as in the former plea). That the indenture on ivhich 

the plaintiff had brought his aBion was dated and made, and 

all debts thereupon OHuing, and accruing^ ß'om the defendant to [ 00 1 

the plaintiffs were contraHedy and occafioned, before the 22d of 

January 1 7 76, to wit, on the 7th day of July 1767, and 

this, (sfc. wherefore he prayed judgment whether the 

plaintiff ought to have any execution, other than againß his 

real eflatCy isfc. The plaintiff demurred generally to each 

of the pleas ; and the cafe came on to be argued this day^ 

by IVood for the plaintiff, and Bolton for the defendant. 

(By the llatute of lö Geo» 3. r. 38. § 41. it was enafted, 
«* That the future real eftates, as well freehold and copy- 
hold, as cuftomary copyhold, or money in the funds, or 
lent upon real fecurity of perfons difcharged under the aft, 
fliould remain liable to their refpeftive creditors, and that 
execution might be fucd out againft fuch real eftate, or 
money in the funds, but not againß their perfon^ or other per-» 
final eflaie''). 

Wood, for the plaintiff, contended, that, fuppofing the 
bond to have been forfeited before the difcharge, and that 
fecurity gone, yet that did not deftroy the other fecurity 
by the deed of covenant, and that the plaintiff had his 
eleflion to proceed on either, as he pleafed. He faid, the 
only queftion was, Whether the infolvent debtors' aft dif- 
charged the payments of annuities, which became due 
after the difcharge ? The words of the ftatute are, •* That 
** no p'jrfon to be difcharged by this aft, ihall be impri- 
" foned by reafon of any judgment or decree obtained for 
*• payment of money only, or for any debt, damages, con- 
«< tempts, cofts, fum or fums of money contrafted, in- 
** currcd, ouafioned, owing, or growing due, before the faid 
** 2 2d day of January 1 7 76" (r). But the word ** occa^» 
** ftosmr murt be confidered as applied only to " contempts i* 
ocherwife the infolvent would be difcharged from con- 
tingent debts, which is not the cafe even of a bankrupt 
who has obtained a certificate. " Owing and growing du/' 
mean, in the above claufe, the fame as *' gro%vn due^ 
which is manifeft from a fubfequent feftion {i), where the 
perfons difcharged are authorised to plead, to any aftion 
brought ** for any debt, fum, or fums of money due be- 
«* fore the 22d ot January 1776," that fuch debt or fum 
^ of money, was. contracted, or due^ before the faid 26th of 

« January.'' 

H 2 



1770« ** January J* At any rate, the words " growing dui* caif 
^ { J only extend to the quarter's payment, which was accruing 

Cot TER EL on ^^e 26th of January ^ for by § 34. it is exprefsly provided, 
againft that no perfons Ihall, by the aßt, be difcharged of debts 
HooKE. fubfequent to that * date. Where an annuity is fecured, (as 
* [ 100 ] in this cafe,) by a deed of covenant, a bankruptcy does not 
difcharge future payments •, although, if the only fecurity 
is a bond, which has been forfeited before the bankruptcy, 
a court of equity, in favour of the creditor, will allow him 
to confider the penalty as a debt, and to prove the value of 
the annuity. He cited, to prove that the remedy under a 
deed of covenant is not taken away by a bankruptcy, 
Fletcher V. Bathurß^ Viner^ tkle Creditor and Bankrupt {e). 
He alfo mentioned Wehßer v. Bannißer^ which was a cafe 
in this court, laft term (/). Such an annuity as this, was^ 
he faid, clearly a contingent debt, becaufe, unlefs the 
party live, it never can become due ; that the laft infolvent 
a£l of 18 Geo. 3. r. 52. was decifive on the queftion, for 
that a new claufe was introduced into that aft, (§ 30.) to 
relieve the grantors of annuities (who have been fugitive 
beyond fcas) when difcharged under it, from the accruing 
payments of fuch annuities \ that this claufe was a legifla- 
tive expofition of the former afts, for it recited, that, 
without fuch exprefs provifion, fuch perfons could not have 
the benefit of the aft, (which in its other provifions refem- 
bled the former ones,) in refpeft of the accruing payment« 
of annuities. 

Bolton^ for the defendant, faid, that all JVooJs argu- 
ment applied only to the fecond plea, but that his objeftion 
to the ^ftion was, that both the bond and covenant were 
entered into to fecure the fame annuity, and that the bond 
having been forfeited, the penalty had become a prefent 
debt, under which the plaintiff might have received a divi- 
dend 5 that he admitted this cafe was not within the ftatutc 
of the 7th oi Geo. i. r. 31. relative to bills, bonds, notes, 
and other fecurities to be paid at a future day, but that on 
the forfeiture, the penalty having become a prefent debt, 
the difcharge under the aft had relieved the defendant 
againft the payment of the annuity ; that, as to the cafe of 
a bankrupt, tliere was no doubt -, that the point had been 
folcmnly decided by the court of Common Pleas^ in Perkins 
V. Kempland {g)y which cafe he read from a note lent him 
by Gould, Jußice\ that, if there was a difference, the 
cafe of an infolvent debtor was more favourable, becaufe a 
bankrupt is confidered as a criminal 5 that the fame fafts 
were now before the court as if an aftion had been brought 


{/) T.gG, 1. Finer, vol. 7. p. 71. (g) C, B, T. 16 Geo. 3. Since rc- 
/^' 4- ported, 2 BlacM. 1106. 

(/) Vide infra^ £, 20 G. 3. p. 393. 


on the bond, for that the deed, purported to be given for 177Q. 
the farther fecuring the fame annuity for which the bond y J j 
was given. He alfo cited a cafe of Raincock v. Freemantle Cotter el 
in this court about fix years ago, where an infolvent debtor againfl 
who had been difcharged, gave a note for a debt which Hookb. 
had accrued before his difcharge, and it was held to be 
void [f 42]. 

Lord Mansfield (topped Wood from replying. - 
His Lordftip faid, the queftion was, Whether, when 
there was a bond with a penalty, and alfo a deed of cove- 
nant, and the plaintiff made no ufe of the penalty, he 
ftiould be barred of his remedy under the deed of covenant ? 
That he took the cafe of a bankrupt and infolvent debtor 
(as to this point) to be the fame. That when a man has 
two remedies, he may eleft. That if the plaintiff had 
made ufe of the penalty, the cafe would have been different ; 
but that, as he had not, he might proceed as often as he 
pleafed for breaches of the covenant. 

BuLLER, Juflice^ faid, that here were two pleas, one of 
which (the fecond) was upon the deed of covenant. iThat, 
if the covenant had been the only fecurity, nothing had 
happened to bar it. That the other plea ftated the bond^ 
conditioned for the regular payment of the annuity. That 
the court could not, becaufe fuch a bond appeared to have 
been given, determine the other fecurity to be void. 

Judgment for the plaintiff [f 43]. 

[f 42] I have not been able to find alfo the fame doärine confirmed in 

that cafe", and, in the cafe of Beß v. Cockjhott v. Bennett ^ B, R, M. 29 Geo, 3. 

Barker, B. R. M, z^ Geo. 3. which by Lord Kenyon, 2 Term Rep, 763. 765. 

Vofe on the infolvent aft of 1781, the Vide Ex parte Burton, Cane. 1744. 

contrary was exprefsly determined. 2-^/^.255. 

0* As it had been in the cafe of [t 43J ^'^^ ^^^'> v. Wilkes, M, 

a bankrupt, in Trueman v. Fenton, 21 Qeo. i. Infra, p. 519. 
f. R. H, 17 Geo. 3. Co^p. 544. See 

WiLKiNs and Others, Aflignees of Brooke, ^nhrSf' 
a Bankrupt, againß Carmichael. 

THIS was an aftion of t rover y brought by the affignees ^/?P^'° ®^ 
of a bankrupt, for a (hip, of whicli the bankrupt was ninixTn the 
owner, againft the captain. The caufe was tried before fcip for wa- 
Lord Mansfield, at Gttildhallj at the Sittings after M. gcs, (lores, or 
19 G. 3. (A). The defence fet up was, that tlie captain repairs done 
had a lien on the (liip for his wages, and for ftores, provi- *" «gland, 
fions, and repairs. A verdift was found for the plaintiffs 
with Ö05 A damages, fubjcd to the opinion of the court, 

(4) Thurfday, 10 December 1778. 

H 3 


I77Ö. ®" ^ ^^^^y which dated as follows : — " That the defendant 

^ _^_ f being the captain of the fhip Afrlcaj mentioned in the de- 

W1LKIN8 clai-ation, befpoke and direä:ed repairs to be done to the 

againft ihip, before fhe fet out upon her lall voyage, and likewife 

Car Ml- * direfted her to be fupplied with (lores and provifions, for 

CHAEL. which repairs, ftores, and provifions, the defendant was 

*[ 102 ] liable as well as the owner. That the defendant likewife 

had wages due to him. That Broohe^ the owner of die 

ihip, became a bankrupt, and, afier the baniruptcy and the 

demand (of the fhip) therein after mentioned^ the defendant 

paid the creditors their bills for ftores and repairs. That 

the plaintiffs (the affignees) demanded of the defendant to 

deliver the fliip to them, which he refufcd, M'ithout having 

an allowance in his account- for his wages, and the money 

he was liable to pay for the bills before mentioned." — The 

queftion, on the above fafts, as flated for the opinion of 

the court, was, " Whether, in this aflion, the defendant 

could be allowed to retain, and have deduöred out of the 

damages which ought to be given for the value of the fhip, 

the feveral fums mentioned in the cafe, or any of them j 

or whether any. of the above articles were fo far a lien on 

the fhip as to juftify his refufal to deliver the fhip to the 

plaintifls without being paid ? If the court fhould be of opi-. 

nion that the defendant had a lien on the fhip for any of 

his demands, a nonfuit to be entered. But, if they fhoulct 

think that any of his demands ought to be dedufted out of 

the damages for the value of the fhip, then fuch money to 

be dedudled out of the money recovered by the verdift, 

and the poftca to be indorfed accordingly." 

The cafe was argued, on Friday y the 5th of February y 
by DavenpQi-ty for the plaintiffs, and Baldivin^ for the 

Davenport argued, i. That, as to the captain's wages, 
it is fettled that they are no lien upon the Ihip, This is 
clear from the cafe of Qlay v. Sudgravc (/), in Salkeld [ 1 1, 


(/) B' R'T, 12 H'', 3. I Salk, 33. can abro|;ate a ft^tute to any purpofe, 

$, C, by the name of C/^- v, Snclgra^^e, or give legality to what an adt of par- 

I Ld. Raym- 576. liament exprefsly prohibits. After the 

[i] By thcllatute of 15 Ä«V. 25. r. 3. cafe of Clay v. Sudgra^ve, the ftatute of 

it is enadled, thai the Admiralty court 4 Jn». c. |6. § 17. puts fuits in the 

fhall have no jurifdi6lion of contrafts Admiraltycourt for feamen's wages very 

anfing by land, yet it is permitted to clearly, though by implication, upoix 

mariners to fuc for their wl^ges in the a legal footing, for the words of tha^ 

courts of Admiralty. In the cafe of feftionare, ** That all fuits and aäioni 

Clay V. Sndgra'ue, as reported by Sal- *^ in the court of Admiralty for fea^ 

felJ, Lord Holt is made to fay that '* men's wages, ihall be commenced 

tnis is expressly againft the ßatute, but " and fued within fix years next after 

that communis enorj'acit jus. Surely it *' the' caufe of fuch fuits or adUoni 

js not confonant to legal principle to *' fhall a^Qruc»'' 
J>gid that any ufagc or common errof 


,and confirmed by Bayley v. Grant (j&), in the fame book. 1 770. 
But if he has no lien for his wages, he can much lefs \_ — ^- _» 
claim any lien for any other demand, as repairs or (lores ; Wilkins 
the wages being more clofely * conneöed with the fhip, than agaioft 
any other demand, as they are tlie confideration for the Carmi- 
work which is done in the fhip, and is abfolutely neceflary chabl. - 
to her earnings« The different tradefmen, as the fhip- * L ^^3 ] 
wright, bifcuit-baker, butcher, ^c. could not have jufti- 
fied the detention of the fhip, if fhe got into their pof- 
feflion, and the derivative creditor for their demands can- 
not have a better right than them. As to repairs done in 
England^ it was exprcfsly determined in the cafe of JVaU 
k'mfon V. Barnardiflon (/), that they are no charge upon the 
Ihip. 2. If the captain cannot juftify the detention, nei- 
ther can he be entitled to any allowance out of the damages. 
A mutual account cannot be fettled by a fort of equitable 
fet-off in an action oi trover. To permit it would be a danger- 
ous innovation in the law. Here, indeed, the defendant's . 
demand is fuch as could not have been fet off in an aftion 
which admits of fetting off mutual debts, becaufe he was 
only liahie to pay, at the time of the demand and refufal, 
but had not a£lually paid. If he were to be allowed fo^r 
what he was only liable to pay, it may prove a great detri- 
ment to the bankrupt's eftate, becaufe the captain may af- 
terwards refufe, or be unable, to pay, and tlien the tradef- 
men will come upon the eftate of the bankrupt. 

Baldwin infifted, that the workman who repairs a fhip 
has a lien upon it. This appears from a cafe Epc parte Shanis 
and otkersy in Athyns (;;;), which was determined againfl 
the fhip-wright, on the particular ground of his having de- 
livered up tlie poffeffion of the vcffel. Probably, in the 
cafe of IVatklns \. Barnardißony the poffeffion had been, ia 
like manner, relinquifhed. If the workman has a lien, it 
feems to be juft, that he fhould be able to transfer fuch 
lien, with the poffeffion, to the captain, who is liable to 
pay him. An aftion could be maintained by the workman 
againft the captain, although he had not given the orders. 
This mull be on the ground, that the workman has parted 
with the poffeffion of the ihip, which he might have de- 
tained as his fecurity, to the captain. It would therefore 
be highly unreafonable, if he could not fecure himfelf by 
retaining the fhip. — On a queftion from the court, he faid, 
he did not knew of any cafe where it had been determined 
that a captain is liable for repairs, if he has not ordered 
them. As to the general do(flrine concerning liens, he 
titcd a cafe Ex parte Deeze (//), and Greene v. Farmer {o)^ 


{k) B, R, T. 12 JV. 3. 1 Salk. 33. {m) 1754. 1 Atk, 234. 
S. C. 1 Ld, Raym. 632. 12 AW. 440. {n) 8 June I74S. 1 Atk, 228. 

(/) Cane. T. 1726. I p. H^'dL 3Ö7. {0) £. b Geo, 3. 4 Burr. 22x4. 

H 4 


I 770- ^"^ ^^^^ there could be no reafonable diflin£tion in refpeft 

I ^^ f to liens between one fort of tradefmen and another, be- 

Wjlkins twcen carriers, taylors, £5*r. and flilp-carpentcrs. If a 

again It coachman is fent to the country on a job, with his mailer's 

Car MI- coach and horfes, and he lays out money in repairing the 

CHABL. carriage and feeding the horfes, he may d?t?in them till 

he Ihall be paid. A captain can certainly detain the cargo 

till the freight is paid, and it would be inconfiltent that he 

ihould be bound to part with the (liip, when he is not 

bound to part with the goods. This cafe is not different 

from what it would have been, if the owner had continued 

folvent, becaufe alFignees take, fubje£l to all equitable liens 

and demands againft the bankrupt. For this, he cited 

JBrowrtf Aßignee of WiUiamSy v. Heath cote $5* aL (p). 

Davenport^ in reply, contended, that the poflellion of 
the captain is merely that of a fervant, to whofe Ikiil and 
fidelity the owner entruils his fhip, and that the captain 
does not, thereby, acquire any qualified property. The 
owner may pledge the fhip, although the captain is in pof- 
feflion of her, but the captain cannot, at leall, he can only 
hypothecate her abroad, and that from the necelfity of the 
cafe, becaufe no pcrfonal fecurity can be given. It would 
be abfurd, if the owner were to change the captain, to 
fuppofe that the former captain could retain the fiiip, and 
prevent tlie voyage, till his account (liould be fettled. He 
denied that a captain is liable for repairs, which he has not 
ordered. — IjotA Mansfield having afked, whetlier if a fliip 
is fent to dock, the (hipwright may detain her, till he is 
paid .? He anf\*'ered, that it is the pradice not to receive a 
ihip into a dock, unlefs they are fatisfied that the owner is 
a good paymafter, which fcemed to ihew'that they do not 
look to the (hip as a fecurity, 

Baldwjn had ir^ftanced the cafe of attorneys, who cannot 
be compelled to deliver up the deeds and papers of their 
clients, till they are paid; upon which Lord Mansfield 
faid that the praöice, in that refped, was not very ancient, 
but that it was eftabliflied on general principles of juitice, 
and that courts both of law and equity have now carried it 
fo far, that an attorney or folicitor may obtain an order to 
ftop his client from receiving money recovered in a fuit in 
which he has been employed for him, tHl his bill is paid 
[13]. Sir James Burroiu mentioned to the court, that the 
firll inftancc of fuch an order in this court, was in the cafe 
of one Taylor of Eve/banty about the time of a contelled 
C 105 ] election for that borough; and Lord Mansfield faid, he 
himfclf had argued the queflion in the court of Chancery, 


(f) 22 Oä, 1746. I jft^, 160. And, Weiß v. Hole, M. 20 Geo. 3. 

[13] Vide Rex \, May, infrß^ £. 19 p. 2z6. 
Ceo, 3, p. 193, 194. Note [26] 



The court took time to confider. 

Lord Mansfield, now, (after ftating the cafe,) delivered ^ 

the opinion of the court, as follows. Wilkiit« 

Lord Mansfield, — Notwithftanding the ftrongeft incli- againil 
ration that the defendant fhould have fatisfaöion, before Car mi* 
the value of the fliip is paid over by him, we are not able CHAit. 
to find a ground upon which we can give judgment in 
his favour, i. He has fet tip a lien upon two forts of 
claim, viz. wages ; and (lores and repairs. As to wages, 
there was no particular contraft, that the (hip fhould be a 
pledge 'f there is no ufage in trade to that purpofe ; nor 
any implication from the nature of the dealing. On the 
contrary, the law has always confidered the captain as con- 
tracting perfonally with the owner : on this ground, prohi- 
bitions have been granted ; and the cafe of the captain has, 
in that refpeft, been diftinguilhed from that of all other 
perfons belonging to the fliip. This rule of law may have 
its foundation in policy, and the benefit of navigation ; 
for, as fhips may be making profit and earning every day, 
it might be attended with great inconvenience, if, on the 
change of a captain, for miibehaviour, or any other rea- 
fon, he fhould be entitled to keep the fhip till he is paid. 
As to (lores and repairs, it is a (Irong anfwer to that claim, 
that when the demand was made by the affignces, the cap- 
tain had not paid. But, if there was any lien originally, 
it was in the carpenter. The captain could not, by paying 
him, be in a better fituation than his, and he had parted 
with the po(refrion, fo that he had given up his lien, if he 
ever had one. The other creditors had none. If the de- 
fendant is liable to the tradefmen, it is by his own aö. 
Work done for a fhip in England, is fuppofed to be on the 
pcrfonal credit of the employer. In foreign parts, the cap- 
tain may hypothecate the fliip. The defendant might have 
told the tradefmen that he only aöed as an agent, and . 
that they mud look to the owner for payment. 2. If there 
is no lien, can there be a fet-off ? This was no item of any 
fort in account between the bankrupt and the defendant. 
The fhip remained in Jpeae till after the bankruptcy j and 
the converfion arifes from an a£l done on the fpccific pro- 
perty of the affignees, not of the bankrupt. 

The po/lea to be delivered to the plaintiffs [f 44], 

[t f f] ^'^^ ^'^^ V. Cce, B. R.T.i-j Geo. 3. Ccnvp. 6^6. 




Frklay, loth 

A certificate 
under 19 
Geo. 2. c 34* 
or 4 Geo. 3. 
c. 15. may be 
granted at a 
period rubfc- 
quent to tbe 
trial, and out 
of court.— 
Matter of de- 
fence arifmg 
after the ac- 
tion brought, 
may be given 
in evidence, 
if It htppen 
before plea 
pleaded, in 
cafes whire 
the fpecial 
matter mdy 
be given in 
evidence un- 
der the gene- 
ral iffue.— 
The lime of 
plea pleaded 
IS to be leck- 
koned from 
the entry of 
the pica on 
the record, 
not from the 
time of its 
being deli- 
vered to the 
plain titf. 

[ 107 ] 

Sullivan againß Montague. 

'T^HE defendant, being captnin of a man of war, on the 
* ^chec ftation, had fcizcd a trading vcrfel of which 
Sullivan was the maftcr and owner, as a fmuggler. Upon 
an information brought in the Vice^Admiralty Court at 
^iebi'Cy fentence ^^'as pronounced againfl ^ullivafi ; where- 
upon he appealed to the fuperior court of Admiralty at Hd- 
lifaxj where the fentence was rcverfcd. On the defendant's 
return to Eriglandy Sullivan brought tlie prefent aftion of 
trefpafs in this court ; and the trial coming on before Lord 
Mansfield, at Guildhally at the Sittings after laft Trinity 
Terniy and the iaGt of the trefpafs being proved, the de- 
fendant produced the record {a) of the proceedings on the 
appeal in the court at Halifax^ on which was indorfed a 
certificate of the judge of that court, that there nvas a pro^ 
hable caufe of feizure. The fentence of the court at Halifax 
bore date in May 1776. The certificate indorfed upon 
it was dated thirteen months later, viz. 21 June 1777, 
which was poflerior to the commencement of the prefent 

The counfel for the defendant infifted, that this certifi- 
cate was a bar to the action, and that the plaintiff mufl 
be nonfuited. 

For the plaintiff it was anfwered, that the certificate 
ought to have been made at the time when the fentence 
was pronounced. 

The jury found a verdi6t for the plaintiff, with i8oa/. 
damages, but fubjecl to the opinion of the court as to the 
cfFeft of the certificate. 

The trial had once been put off upon an affidavit on the 
part of the defendant, that an application had been made 
to the judge at Halifax^ to certify, at the time of the re- 
verfal of the original fentence, and that the judge then faid 
he would certify whenever he fhould be required. Between 
the time when that affidavit was made,i and the aöual trial 
of the caufe, the certificate had been obtained. 

In the lall term, the Solicitor General having obtained a 
rule to ihew caufe why a nonfuit (hould not be entered, 
two quellions were made : i . Whether the certificate could 
have been granted even at the time when the fentence, on 
the appeal, was pronounced ? 2. Whether it could be 
granted fo long after tlie fentencp ? 

It was fuppofed, at the trial, and when the argument 
came on upon the rule to (hew caufe, by the counfel on 
both fides, that the certificate had been granted under the 

1 6th 

{a) i. i, ä copy, by confcnt of the plaintiff. 


i6th feftion of the ftatute of the 19th of Geo. 2. r. 34. I77Q. 

which confifts of two branches. " i. In cafe any inform- y _ _ j 

** ation fliall be commenced -and ^rö//^/»/ to trial^ on ac- Sullivam 

<* count of the feizure of any fliip as forfeited for illegally again ft 

** carrying goods, or of any wool, goods, wares, or mer- Mok- 

<* chandizes, as prohibited or uncuftomed, or illegally car- tac ub. 

** ricd or exported, or intended or attempted to be export- 

'^ ed, or as illegally relanded after having been fhipt or ex- 

*' ported upon debenture or certificate, wherein a verdiB 

** ihall be found for the ciaimcr thereof, and it iliall appear 

*< to the judge or court before whom the fame fliall be 

** tried, that there *was a probable caufe of feizure y the judge 

** or court before whom the faid information ihall be tried, 

** fbail certify on the record^ that there was a probable caufe 

** for the profecutor's feizing the faid fhip or goods ; and 

** in fuch cafe, the defendant (hall not be entitled to any 

^« cofts of fuit whatfoevcr, nor fliall the perfons who feized 

** the faid ftiip or goods be liable to any a6lion, indiö- 

*• ment, or other fuit, or profecution, on account of fuch 

*' feizure. 2- And in cafe any adlion, indictment, or 

** other profecution, fliall be commenced and brought to 

** trial againft any perfon or perfons whatfocver, on ac-* 

*' count of the feizure of any fuch fliip, or of any wool, 

*< goods, wares, or merchandizes, as prohibited or uncuf- 

** tomed, or as illegally carried or txportcd, or intended 

** or attempted to be exported, or illegally relanded as 

** aforcfaid wherein a verdiä fliall be given againfl the de- 

" fendant or defendants, if the court or judge before whom 

** fuch aöion or profecution fliall be tried, ihall certify on 

** the faid record, that there was a probable caufe for fuch 

" feizure, then the plaintiff, be fides his fliip or goods fo ' 

*' feized, or the value thereof, fliall not be entitled to 

" above two-pence damages, nor to any cofts of fuit, nor 

** fliall the defendant in fuch profecution be fined above 

« one Öülling." 

Dunning, and Lee^ fliewed caufe ; and it being urged, 
that the above claufe in the ftatute of Geo. 2. was confined 
to Great Britain^ and tlie court being of that opinion, and 
thinking, alfo, that it applied only to cafes where there 
had been a trial before a jury and a verdiHy the cafe flood 
over, in order to fee whether any fubfequent aft had ex- 
tended this provifion for granting certificates to the Admi- 
ralty courts in AfJierica. 

At the trial, the Solirifor General had applied to Lord I '©^ 3 
Mansfield to certify under the fecond branch of the 
claufc, but his Lordfliip refufed, being of opinion that the 
cafe was not within it, for that it only related to cafe« 
where there had never been a condemnation [f 45]. 


ft 45] ^'^^ Renalis v, Cocper^ that a judge may certify, under that 
B-R. £. zz Ge9. 3. where it was hdd fecond branch of the danft» thoagk 



1 770, When the argument came on again, (which it did in the 

^_ _ _ ^ fame term, viz. M. 19 G, 3.) it appeared, that by a claufc 
buLLivAN "1 the ftatute of 4 Geo. 3. r. 15. the i6th feftion of 

againft 1 9 Geo. 2. is expref&ly extended to Americoy and to cafes 

MoN- where there lias either been a verdi<St, or fetitence {a). 
TAGU&* Dunning, for the plaintiff, Hill infilted, i. That the cer- 

tificate could not be granted upon an appeal ; and, 2. That it 
could only have been granted at the time ivken the fentence 
was pronounced. 

The Solicitor General, on the other fide, faid, as to the 

' firft point, that there were no words in the claufe of the 

ftatute of 4 Geo, 3. to exclude the judge in an appellate ju- 
rifdiftion from granting certificates ; and that it would be 
extraordinary indeed, if a perfon who had taken a fhip 
which had never been condemned, might be proteöed by 
a certificate, and yet that another, who had fuch good 
ground for feizure as to obtain a fentence in his favour, 
ihould have no fuch protedlion, if that fentence was, af- 
terwards, rcverfed. As to the fccond point, he obferved, 
that there were no words in the ftatute requiring the certi- 
ficate to be made in open court ; that, by the ftatute of 
4 Ann. c, 16. § 5. the judge is authorized, where there 
have been feveral matters pleaded, to certify whether there 
was probable caufc ; but there being no exprefs words re- 
quiring this to be done in court at the trial, the court of 
Comtnon Fleas had determined, that it might be done after 
an application had been made for taxing the cofts; Cremer 
V. Dent {b) ; that, where the legiflature meant the certi- 
ficate to be made at the time of the trial, it is fo exprefled, 
as in the cafe of fpecial juries [c). 
[ 109 ] Lord Mansfield delivered the opinion of the court; 

I, That the judge in the appellate jurifdiftion had a power 
to certify, fo that the wprds and meaning of the ftatute of 
Ge^. 3. were, that, wherever a fentence was pronounced, 
the judge might certify. That a contrary conftruftion 
would be attended with the abfurdity ftated by the Solicitor 
General. There could be no certificate in the original court, 
bccaufe the fentence was in favour of the defendant, and 


there has been no information brought (r) 24 G. 2. c. 18. § i, '^ Unlefs 

in the Exchequer, for the condemnation ** the judge before whom the caufe is 

of the (hip. " mcd,ßall immediately after the trial 

{^) 4 Geo, 3. f. 15. § 46. " certj/y in of en court, under his hand, 

{h) E. 24 G. 2. Barnes 141. 4/0 " upon the back of the record, Sec.'* 

•d. 1772. [t 46]. 

[t 46] A certificate under 8^9 21.) though the words of that ftatute 

Will. 3. f. II. ^4. that a trefpafs was are not fo ftrong as thofe of 24 Geo. t. 

wilful and malicious, m2Az cut of court, c. 18. nor indeed fo ftrong as the re- 

has been determined to be void (Ford port in 2 PFilf. makes the court ftatc 

V. Parr, C. £. E. 28 Geo. 2. 2 ff'ilf. them to be. 


it would be ftrange indeed if he were to be in a werfe fitua^ j 770, 
tion than if that fentence had been againft him. 2. That , _ _ j 
the certificsite might be granted after the trial. That there üuluvaw 
were no words confining it to the time of the trial, and againil 
the cafe on the ftatute of 4 Ann, was a llrong authority on Mow- 
this point. That the cafe of a fentence by a court oi Ad^ ta-cv*. 
fniralty was ftronger than that of a verdict at law, bccaufc 
the verdift is entered, and completed, immediately, but 
the fcntences in the Admiralty court are often not drawn 
up for months after they are pronounced. 

His I^ordftiip faid, the rule for entering a nonfuit muft be 
made abfolute. 

But Dunning having raifed a new objeßion, viz. tKat, 
as the certificate did not exill at the time of the commence- 
ment of the adlion, it could not be taken advantage of on 
the general iüue, but ought to have been pleaded, tliis 
queftion ftood over, till Saturday the 28th of November ^ the 
laft day of Michaelmas Term^ when it was argued, by 
Dunning^ for the plaintiff, and the Solicitor General^ for the 

As the argument, on this point, turned upon the times, 
and dates of the proceedings, it will be proper to (late 
them. The adiion was commenced in February 1777- The 
declaration was of Eaßer Term 1777. The pica was deli- 
vered on the loth of June 1777, but was not entered of 
record till Hilary 1778. The certificate, as has been al- 
ready mentioned, bore date the 21ft of June \ ']']']• 

For the defendant, it was faid, by the Solicitor General^ 
that the prefent queftion came before the court in a very 
unfavourable light, for that it amounted to this, whether 
there had been, by the fault of thofe concerned for the de- 
fendant, fuch an omiffion in pleading, as fhould, in the 
prefent ftate of the caufe, render him liable to the ans\junt 
of 1 800 /. which in reality he was not bound to pay ? But 
that, even at the trial, if the objeöion had been made, it 
could not have prevailed j or, if it could then, it now 
came too late. That it was a general rule, that, whatever 
takes away the right of action, although it arife after the E '^o 1 
commencement of the fuit, provided it happen previous to 
plea pleaded^ may, in cafes where fpecial pleading is necef- 
fary, be pleaded in barj without faying in the plea, that it 
happened after the bringing of the aÖion \ and, in cafes 
where the fpecial matter may be given in evidence, may 
be taken advantage of on the general iflue ; Bird v. Randal 
(a). That, by the ftatute of 4 Geo. 3. (^), the defendant, 
here, was entitled to give the fpecial matter in evidence. 
That it would have been impoflible to plead the certificate 
at the trial, in this cafe, puis darrein continuance ^ becaufe, 


(i) M. 3 Geo. 3, B. R. 3 Burr, 1344. (*) § 47. 


1770. °^ looking to the recortl of the plea, and comparing it witb 
. _ I the date of the certificate, it would have appeared, that 

Sullivan the matter of defence had arifcn before the plea, which 
again ft was the lail continuance on record. That the plea had 
MoN- indeed been delivered hcioxz the date of the certificate, and 
TAGUB. that it was in the plaintiff's power, who made up the re- 
cord, to have entered it, either of the term preceding, or 
the term fubfequent to, the delivery ; but that, having en- 
tered it of the term fubfequent, and the certificate having 
been granted in the interval, he could not now be permitted 
to fay the certificate was pofterior to the date of the plea, 
as appearing on the record, and as he himfelf had put it 
there. That, in anions againft executors, if judgments 
arc confefled, after the declaration, and before the plea, 
the practice is, to plead them in bar, not puis darrein con» 
tinuance. That there had been a cafe very lately before 
HoTfiAM, Baron f in Kentj where a certificate, granted 
after iflue joined, was permitted to be given in evidence« 
That, . if it were true that the certificate ought, in ftri£l- 
nefs, to have been pleaded, yet, as no objeäion had been 
made on that ground at the trial, and the certificate, which 
was then, infaEl^ given in evidence, proved that the plain«- 
rifF had no nght to recover, the court would not fufibr him 
now to profit by a mere flip in point of form. 

Dunningy on the other fide, infilled, that Lord Mans- 
field had given the defendant leave, generally^ to move for 
a nonfuit, without faving any particular point \ and there- 
fore, every objeftion was now as open to both parties as 
they would have been at the trial. That, at that time, all 
concerned thought the only aft on the fubjeft was the fta- 
tute of 19 Geo, 2. That, as to the argument that this 
could not be pleaded puis darrein continuance^ that depended 
on tjie faß, whether the matter arofe previous to, or fince 
the laft continuance. But that his ground was, that, in 
[ III ] all events, it ought to have h^cn pleaded; if before the laft 
continuance, in bar 5 if after it, then puis darrein conti-- 
nuance. He appealed to the court, and the bar, whether 
it was not a general rule, that a fadt, which if it had hap- 
pened before the commencement of the aftion might have 
been given in evidence, muft be pleaded if it arife after 
the a£tion is brought ; and (aid it was every day's prafticc, 
in aftions of ajjumpßt^ to plead a releafe, when obtained 
iffter the commencement of the fuit, although it is to be 
given in evidence, when prior. That the reafon was plain, 
becaufe, by the general iffue, a defendant aflerts, that, at 
the time of commencing the fuit^ fome reafon exifted which 
fliould have prevented the plaintiff from bringing the ac- 
tion. That, if the defendant fhould now prevail, the plain- 
tiff would be charged with cofts, for a reafon which had 
no exiftence when he brought his a£üon. That, by plead- 


ing the certificate, the defendant would have given the 1770. 
plaintiff an opportunity of taking the opinion of the court, t , ( ^ 
on the point difpofed of on the former argument, without Sullivan 
the expence of a trial. againft 

The court feemed all to agree, that matter happening Mok- 
after the beginning of the fuit, but before plea plfcaded, taci;«. 
might be given in evidence ; but Willes^ Jiiflicc^ ex- 
prefled with great earncftnefo his doubts, whether the time 
of plea pleaded ought not to be reckoned from the time 
when the plea was actually delivered, the date on the re- 
cord being a mere fiction. Lord Mansfiki.d obfei*ved, that 
fuppofing the rule to be as, Jußtcey conceived it, 
both parties had been guilty of a flip ; the plaintiff in not 
objcfting to the evidence at the trial ; the defendant in not 
pleading ; and can the court (he faid) decide that the plain- 
tiff fhall be relieved again^ft the one, and the defendant 
caught by the other ? 

The cafe flood over. 

And now, his Lordfliip, (after ftating the fafts and 
dates,) delivered the unanimous opinion of the court, to 
the following efK.'9: : 

Lord Mansfield, — ^The queflion made at the trial was^ 
Whether the Judge of the court of Halifax could certify, 
after the caufe nvas over ? That was the point favetl. If the 
court fhould be of opinion that the certificate was a bar, a 
nonfuit was to be entered. The queflion was f«lly ar- 
gued laft term, and we were all of opinion, that the certi- 
ficate was a bar to the aöion- After that opinion was de- 
livered, a motion was made to fupport the verdidl, and on 
^grounds entirely new. For it has been objefted that the [ 11% ^ 
certificate ought not to have been read at the trial ; i. Be- 
caufe it did not exifl when the a£lion was brought ; 2« Be- 
caufe it did not exift at the time of plea pleaded. This 
was no part of the queilion meant to be fubmitted to the 
court, yet the plaintiff was fully apprized of the certificate 
before the trial, and a copy of it was read hy confent. 
The only way in which we could let the plaintiff have the 
advantage of the prefent objeftion, would be to grant a 
new trial ; but, in that cafe, the defendant mufl be let in 
to plead the certificate. This alone is decifive. But, to 
go farther. If the objeftion had been made at the trial, 
we tliink it could not have prevailed. AElio mn goes, in 
every cafe, to the time of pleadings not to the commence- 
ment of the aftion [f 47]« In the prefent inftance, the 


[t 47] Vide Reynolds v. Bcerling^ ^ainft the plaintiff, after the dcclara- 
B, R. M, 25 Geo. 3. where it was de- tion was delivered, and before plea 
termined on a demurrer, that a judg- pleaded, may be pleaded as a fet-off*, 
ment obuiiled by the defendant, a- and /i^^^ although it do not appear tii at 



J tj^Q^ general iffuc is given by ftatute, and that leaves every dc- 
y j^ fence open which the defendant might otherwife have by 

Sullivan Special pleading. The certificate is dated the 2 1 ft of Jufic 
againil '777> ^"^ ^^^ P^^^ was a£lually delivered on the loth of 
MoN- that month, but the plaintiff made up the record, and en- 
TAGUE. tered* the plea of Hilary 1778. We think he could not 
have been let in at the trial to contradid^ the record. Le- 
gal fi£liops, and relations, can never be contradi£bed, to 
prevent juftice, and let in mere objeftions of form and regu- 
larity [f 48]. If a writ is teße'd the laft day of a term, you ' 
cannot fay it iflued in the vacation, for the purpofe of 
making it void, though you may fhew when it really iflued, 
if the jußice of the cafe required it [13]. But, here, the 
plaintiflF himfelf made up the record. Shall he be admitted 
to aver again ft his own a£l, by which he has mifled the 
defendant ? By fo doing he faid to the defendant, ** In- 
<* ftead of pleading this matter, you may give it in evi- 
** dence.** One cafe was mentioned at the bar, in which 
a certificate granted after iflue joined, was admitted in evi- 
dence 5 but it is faid that no objeftion was made. There 
is great reafon for confidering the certificate, in cafes like 
this, as granted nunc pro tunc ; but, without giving any 
[ 113 3 opinion, now, on that point, as the objeflion was not 
mad^ at the trial, as it would not have availed if it had 
been made, and as the defendant, if it were to prevail 
now, muft be let in to plead 5 we are all of opinion that 
the rule for a nonfuit ought to ftand. 

The rule made abfolute. 

the caafe of adUon on which the de- cafe of Reynolds v. Beerlings he found, 

fendant's judgment was obtained^ was that on the point here dated, it could 

prior to the commencement of the not be fupportcd. 

plaintiff's adlion. t^ But, in E<üans v. [t 48] f^ide Moßyn v. Fahrigas, 

Froßr,B.R.E.2gGeo,^, ^TermRep. B. R. M. 15 G«?. 3. Cowf. 161. 177. 

186. it was determined, that a plea of [13] f^ide, to this purpofe, \R^x v. 

fet-ofF, that the phuntifF was indebted Mann, Scacc. 13 Geo. i. 2 Str. 749. 

to the defendant at the time of the plea John/on v. Smith, B. R, E. 33 Geo. z. 

pleaded, is bad; and that it (hould 2. Burr. 950. cited fupra, p. 62. Note 

ftatc that he was indebted at the com- [f 30]. Morris v. Fugh, B. R. M. 

mencement of the adion; and Buller, 2 Geo. 3. 3 Burr. 1 241. cited, yir/rÄ, 

Jultice, faid, that on looldng into the iM. 

The End of Hilary Term 19 George IIL 



Court of king's BENCH, 

I N 

Eafter Term, 

In the Nineteenth Year of the Reign of George lit. i ^^9. 

—————————. ■ Wednefdajr 

Ex parte Cole. h^^T 

^WP£R moved, on the part oi Cole, who had for- o*lJn'app°^ca^** 
V^ merly been an attorney of this court, and had, at his tion, and af* 
own defire, been ftruck off the roll, and was then called tei wards call- 
to the bar, that he might be again put on the roll of attor- ^ ^° ^^^ ^'."jj 
neys. The court refufed to comply with the application, ^^^ -"^ ^^^ 
there being no inftance of a barrifter being admitted an at- leave to be 
torney. They faid, he ought firft to have applied to his fo- again put «p- 

<;iety to be dilbarred [t 49]. °" ^^''^ ""^^^ ®^ 

' *•' ^^-* attorneys. 

[t 49] ^ide Moody* g Ca/e, C. B, 7*. the land tax, and having moved to b« 

16 Geo. a. Barnes, quarto ed. p. 42. reftoföd, on an affidavit, fetcing forth 

where an attorney, having, at ms own his reafons, the motion was granted, 

inftance, been ftruck off the roll, and he confenting to take Ao advantage of 

having been put into the commiffion of any ad^ion pending, if there ftiould 

the peace, and made a commiftioner of be any. 

Richards fqui tatn^ &c.) againß BroWk. 

nrHE plaintiff having fued the defendant in an zQ^xm for between the 

* ufury, and having obtained a verdift, and judgment, name of the 

in this court, the defendant brought a writ of error, in the aifo»i>ey in 

TT^„r_ the warrant 

claration, may be amendrd by altering the name in the warrant to that in the declara- 
tion, in a penal afiion, after erior brought and the variance aifigned for error. 

V0L.L I 


1770. Houfc of Lords, and affigncd for error, that the attorney 
^ ' ' I who had appeared on record for the plaintiff had no war- 
Richards ^^i"^ from him. In the laft term, pending the writ of 
againft error, the plaintiff obtained a rule to fliew caufc why the 
Brown» judgment roll ihould not be amended, b^ ftriking out the 
name of " Robert Mayes^* in the plaintiff's warrant, and 
inferting that of « John Staplefird.^' 
£ iir ] Davenport now (hewed caufe, and contended, that there 

is no inftance of fuch an amendment being made after 
error brought, efpecially in a penal aftion, unlefs where 
the plaintiff in error has been guilty of Liches {a). Even 
the omiffion of the Chriftian name of the attorney, in the 
warrant, has been held to be bad, and to make it no war- 
rant {b). A warrant of attorney muft be entered, which 
cannot be done after error brought ; as was decided in a 
cafe in Dyer^ T. 6 Eliz. {c). To alter both the Chriftiaiv 
name and fimame of the attorney in this cafe would be 
making a new warrant. 

The Solicitor Generale for the rule, contended, that the 
diftinftion where there has been laches on the part of the 
plaintiff in error, has no foundation in reafon, and that the 
cafes cited by Davenport were decided on grounds which 
go to the difcretion^ not the power of the court. In a cafe 
in Moore (rf), an amendment was allowed in the name of 
the attorney, after error brought j and in the cafe of Hen' 
riques v. The Dutch Weß India Company {e)y it was deter- 
mined that a warrant of attorney may be entered at any 
time, pendente lite. As to this being a penal a£lion, fince 
the millake was merely in form — the bluiKier of a clerk- 
he did not conceive that could make any difierence [(Ö*^. 
In Sedgwick v. Richard/on (/*), it was held, that penal 
actions are within the ftatute of 32 Hen. 8. c, 30. and that 
a difcontinuance in fuch an aftion is> by force of that fta- 
tute, cured after verdift j and in Philips v. Smith (^), 
which was a penal action, a miftake, in the addition of the 
defendant, in the warrant of attorney, was amended after 
error brought. John Stapleford is the name in the meinth^ 


{a) Dyer iSo. pL 48. But as the aftion (for ufury) had beea 

(/;) 1 RolL Abr, 289. (H),//. 3. depending four years, they would not 

\c) Dyer 230. h. fL 58. permit the fums and dates in the decla- 

\d) litley v. Rigs^ Moore 71 1. rations to be amcnded> as it would> in 

\e) B. R. T. 2 G. 2. 2 Stran. 807, efFedt, amount to leave to bring ano- 

s Ld. Raym^ ^SS^* ^her a6tion, after the time limited by 

[t:?*] In Goff (qui tarn. Set.) v. law was expired. 

Popplenvell, B.R.M. 2p Geo. 3. 2 Term (/) C. B. T. ^W.^ M. ^ Leo. 

Rfp. 707. the court faid, there was no 374. 

difference between civil and penal ac- (g) B. R.M. ^G. i. i Stra. 136. 

tions as to ameadmencs at common law. 


rafxium of the declaration^ according to which the amend- 
ment may be made [ij. 

The rule made abfolute. 

Richards • 

again 11 


(i) In the cafe in Moore^ the attor- Excheqaer Chamber [Ö*]. In Tully 

ney was called, in the warrant, John v. Sparkes (/), on a writ of error in the 

JKff/yur^, and, in the declaration, ^////Ä/w Exchequer Chamber, it was affigned 

Keeling, and the amendment made was for error, on a judgment, on a de- 

to alter William to John. The court murrer to the plea, that the damages 

allowed the amendment, on the ground, occa/ione detentionis Mitt were not iaid 

that, by intendment, the warrant of to be awarded ex ajfenfu fuo j and Pen- 

attorney is antecedent to the declara- ^///py. Chief Baron, having fome doubts 

don. The prefcnt cafe was jufi the whether the cafe was within i6 ^ 17 

revcrfe; and, if there is any weight Car, 2. c. 8. § i. the court of B. R. 

in that reafon, it rather made againft was moved, and amended the judgi 

the amendment in this cafe. In Short ment in the original record, and, the 

V. Coß», Exr. B, R, E, II tranfcript being afterwards amended, 

[ 116 ] G. 3. (i&), the court amend- the court of Exchequer Chamber af- 

cd a judgment by chang- firmed the judgment. Fii/e infra. Rex 

ing it from, '* de bonis propriis,** to v. Lyme Regis, on the profecution of 

** de bonis teflatoris ß, ^c,** after er- the Hon. Henry fane, p. 135, 

ror brought, and an argument in the 

{h) c Burr. 2730. B. R. £. 27 Geo. 3, i Term Rep. 

[l^J And even after the record 782, 3. 
has been fent back from the Exche- (/) 2 Str. 867. 869. 2 Ld. Raym. 

iquer Chamber. Green v. Bennett, 1570, 157 K 

The King agalnß Wavell and Others. f^lh'J^;;, 

^HIS was a rule to fliew caufe, whv a rate for the relief A rate can- 
-*• of the poor of the parifli of Effingham^ in the county of not be made 
Surrv^ and an order of feffions confirming the rate, fhould ^° ''^P^y "*°" 
hot be quaflied, on the ground, that the parties applying "o repalr^and 
for the rule were over-rated and over-charged. The court rebuild a 
of quarter feffions had refufed to ftate a fpecial cafe, but workhoufc. 
the counfel for the appellants being of opinion that the rate 
would appear to be bad from the titlcy they removed it, 
by certiorariy into this court, and obtained the prefent füle. 
The title of the rate was as follows : 

" Surrj^ to wit. An afleffinent on all and every the 
** occupier^ of lands and houfes, in the parifli of Eßttg- 
•* haniy for the neceflary relief of the poor, and towards 
** payment rf money borrowed for repairing and rebuilding the 
*« ivorlJjotife!* 

The objedion being ftated to be, that, upon this title, 
the rate appeared to be made for a purpofe not within the 
ftatute of 43 EU c. 2. viz. towards payment of money bor'- 
rowed^ &c. WiLLEs, Jufliccy obferved, that the ground, 
hi the rule, was only, that the parties were over-rated and 
ruer-cbarged^ and fccmed to doubt whether, upon a rule fo 
I 7, worded^ 


1 770» worded, the court could go into the jurifdi£lion, or righf 

^ - - f to rate ; but the Solicitor Getierai anfwering, that they were 

♦ The King over^ratcJ, and over^ckargedy to the amount of that part of 

ftgainft the fum afleficd which was to be applied to the repayment 

Wavell« of the money borrowed, the counfel in fupport of the rate 

proceeded to (hew caufe agatnft the rule. 

Dunning^ Lade^ and Rous^ for the rate — ^The Solicitor 
General J and Mingay^ on the. other fide. 

In fupport of the rate, it was contended, that it was un- 
neceflary to h^e faid more in die title, tlian " A rate for 
•* //^ relief of the poor^^ a»d that the aös and orders of 
r 117 1 niagiftrates, (except conviftions,) are entitled to every in- 
tendment from the court, that can fupport tkcm, and, 
therefore, tlie court would intei>d the whole money to> have 
been affefled for the firft purpofe exprefitd in the tide, if 
it (hould be thought that the other was not within the fta- 
tute, and would rejedl the additional words, as furplufage* 
If the prefent objcflion was founded in law, the proper 
method of getting at it would have been, by an appeal 
from the allowance of the overfeers' accounts. However, 
this purpofe, of building or repairing a workhoufe, was 
manifeftly within riie fpirit of the ilatute of Elizabeth^ fincc 
h would be in vain to provide for the fuftenance of the 

f»oor, widioiu being able to fumifh them with a lodging, 
t did not appear, on the face of the rate, but that the mo- 
ney might have been borrowed within the year^ and, there^ 
fore, it was incumbent on the perfons complaining to (hew 
that a rate cannot be made for the repayment of nv)ney 
borrowed for building a workhoufe within the year. There 
is a claufe in the aft (^), authorizing the pariih-officers to 
build houfes on the walle for lodging the poor, and direft- 
ing the money for that purpofe to be levied in the fame 
manner as what is before {h) dircdled to be raifed for the 
relief of the poor; and fuch power in the parifti-officers 
is clearly recognized and confirmed by fubfequent fta- 
tutes (i). 

On the other Mt it was faid to be a general rule, with- 
out exception, that pariih-ofiicers cannot borrow money for 
any purpofe whatever. The inconvenience of veiling fuch, 
an audiority in them was manifcil j for new inhabitants 
might be called upon to pay money borrowed before thcj 
becomq parifhiouers, and for purpofes from tvhich they 
could derive no benefit; in order, for inftance, to repay 
money employed in building a workhoufe, which mty b^ 
fallen to ruin at the time of making the rate. It was dc- 
lermiiicd in Ta^nefs Cafe (i), that there is no power to 


J) § 5. 3 Salk. 531. GMod. 97. S. P. RexY. 

h) § I . Cburcbwardtns of Rothcrhifhe». M. JLi 

(/) 9 Geo. !• f. 7. § 4, Q. 1, 8 Mod, 339. 
(i) /f. 2, Ann. 2 Ld. Raynt. too^ 



rc-imburfe an overfeer for money he may have advanced on j 77g, 

account of the parifh ; that he can only do it himfelf by a 1 _ - .^ 

rate made within his yezr for the relief of the poor. It was 'f he Kino 

impoflible that the court fliould intend that the rate was againft 

not made for the very purpofes exprefled on the face of it, Wavkll« 

by the perfons who made it. The court could not fuppofe, 

that no part of this rate was for the money borrowed, or 

confider that part of the title as furplufage. In the cafe of f ug 1 

Rex V. Rebow (/), the rate was both for the houfe and the 

tolls, and the couufel, in fupport of the rate, contended, 

that, as the houfe was clearly rateable, the court, if they 

fliould be of opinion that the tolls were not, would intend 

that the whole was aflcfled for the houfe, rather than quaih 

the nrte 5 bat the court would not liften to tliis argument 

[2]. The prefent objeoion would not have been compe« 

t-ent, on an appeal from the allowance of the overfecrs* 

accounts ; for in fuch cafe, nothing can be objefted, but 

t<hat the money has not been applied to the purpofes for 

which the rate was made. 

Ix)rd Mansfield abfent. 

WiLLEs, Jußhey — Can we rejeft as furplufage what is 
a material »part of the title of the rate ? If we cannot, is a 
Tate, to repay money borrowed, good ? Taivne^s Cafe is in 
point to this, that a rate cannot be made for tlie exprefs 
purpofe of rc-imburfing an overfeer for money advanced 
by him, even within his year. As to an appeal againft 
the overfeenj* accounts, is a parifliioner to be obliged to 
pay money, and to be turned round, in that manner, to 
get it back, if levied without authority ? The rate cannot 
be fupported. 

AsHHURST, Jitßhej of the fame opinion. 

BuLLER, Jitßice^ — ^This rate imports to be made for two 
purpofes, and we are defired to confider it as only made 
for one. I conceive, that a rate cannot be made for money 
borrowed, even though within the year. Tawney^s Cafe goes 
that length 5 for it is not confined to the mandamus. If it 
were otherwife, the inconvenience might be very great. 

The rule made abfolute* 

(/) ilf . I } Gee, 3 . Beit Append. % 84. court obferved, that it was not let forth 

{2] By the report of the cafe in in the cafe, that Rebow was rated for 

Bett, (lee. cU. p. 386.) Lord Matif- the heufe, but only for the tolls. Thero 

field is made to fay, « They ha've not is probably, therefore, fome iaacca- 

** rated the beufe, they have rated the racy in the account here given of th^ 

^* tells '^* and it is exprefsly dated in a argameot in that cafe. 
piaoQfcrij)t note which I have, that th^ 

T^efday» »7th 

On a demur* 
rcr to evi- 
dence, every 
fa6l which the 
jury could in- 
fer, in favour 
of the party 
ofTciin:^ it,^ 
from the evi- 
dence de- 
murred to, is 
* to be conll- 
dered as ad- 
mitted. -—A 
having a cuf- 
tomaiy duty 
on corn im- 
ported, it is 
a good cuf- 
tom, that 
faflors free of 
the corpora- 
tion (hall re- 
ceive to their 
own ufc, that 
part of the 
duty which 
ariies from 
com confign- 
ed to them 
as faflors« 

C »20 ] 

CocKSEDGE agatnß Fanshaw. 

PpROM time immemorial, there hath been 
"' the corporation of London^ for their ufe, a 

the quarter of 

pddy to 
toll or 

duty of one farthing on the quarter of com, by all 
** perfons, not being free of the city, importing corn into 
** London^ or the liberties thereof, coaftwife, eaftward of 
*< London Bridge, except from the Cinque-forts^ or the 
*^ county of KentP Freemen are exempt from this toll ; 
and fuch freemen as are corn-fa£lors claim a right to have 
the duty colleöed on all corn configned to them in London^ 
to be fold on account of their correfpondents, although 
fuch correfpondents be not freemen, returned to them. 
The corporation infift, that the^ are entitled to retain the 
duty paid for fuch corn, thf property of ftrangers, though 
configned to freemen-faftors. To try this queftion, the 
prefent plaintiff, being a freeman-faftor, brought an aäion 
for money had and received to his ufe againft the defend- 
ant, who was the city officer who had collefted the duty 
on a quantity of corn configned to the plaintiflF, but which 
was the property of a non-freeman. The caufe was tried, 
at Guildhall^ before Lord Mansfield, at the Sittings after 
Trinitv TVn», 16 Geo. 3. when a verdidl was found for the 
plaintiff. In Michaelmas Term following, the defendant 
obtained a rule for a new trial, and, on the day for (hew- 
ing caufe. Lord Mansfield reported the evidence, in cf- 
fe£l, as follows : 

The counfel for the plaintiff called, 

Benjamin Green^ who faid he had been an officer of the 
cuftoms 46 years : he had particularly known the toll of 
the farthings, from the year 1729, to the year 1751- 
During that time, they were always returned, when the 
qorn belonged, or was configned to, freemen. He remem- 
bered they were always returned to Sir John Thorn/on^ and 
to Alderman Nelfon, 

Jofeph Fißerj aged 75, faid, he had been in the com- 
tralde for 50 vears. The farthings had always been returned 
to him as a iadlor. He had been clerk to Sir John Thom- 
fonj and always underdood the exemption to extend to 
freemen as faöors.— On his crofs examination, he faid they 
always charged the farthings to their correfpondents. 

'William Andcrfon's evidence was to the fame purpofc. 
He faid, he had been a clerk to Alderman Nelfon^ who 
never dealt on his own account, but folely as a faftor. 
That Nelßn^s dealings were to a great amount, for that he 
fomctimes fold 5000 quarters in a day, and he always had 
the fartliings returned. 

XI JTilliam 


WUUam Read, clerk to the defendant, faid, at firft, that j 770« 
the farthings were never allowed to fadlors, and that he y - _ j 
would not have allowed them if the perfons claiming had Cocksedqe 
declared that the corn wa« configned on commifTion, But, againft 
on being prefled, he acknowledged that he never knew the FAK9KA«r« 
queition aiked, whether the perfon claiming the farthings 
waS| or was not, a fa£i:or. He knew Nelfon to be a fac-» 
tor, and had returned the farthings to him, to the amount 
of 100/. in a yean When the demand of a return of the 
farthings was made, the freeman making the demand ufed 
to write thus (in what is called a certificate), << for your 
** -humble ßrvant^* or, ** on account of your humble fervant^* 
He knew that nineteen out of twenty parts of the com fold 
in Londofif was fold by commiffion, and he knew of no in-^ 
ftance where freemen had paid the duty. He had known 
the duty amount to x 100/. in a year, but it was now re« 
duced to 200 /. • 

Richard Reed laid he was clerk to MefTrs. Wear and Tay- 
hry corn-fadors« They had always paid the duty, before 
they took up their freedom, and never fince. On proof of 
(heir being freemen, the farthings had always been return- 
ed, without further enquiry. — On his crofe examination^ 
lie faid, they always charged the farthings to their corre« 
fpoQdents, in this manner \ " for the farthtngi^ and libt 
jf fltt/ for the farthing** 

There was no evidence produced on die part of die 

His Lordihip faid, he had told the jury, that the whole 
<lepended on the ufage : that the fa£lors charging their cor« 
refpondents the farthings did not amount to a decifive ac- 
knowledgment, that the city was entitled to them; It 
might raife a queftion between them and their employers» 
The pradice of felling by comniiffion, may have been as 
ancient as this duty \ and, if in the original grant of the 
duty, there was an exemption as to all com configned to 
freemen, fuch exemption would be good« ' 

Wallace^ Bolton^ and Bullerj (hewed caufc againft the 
new trial. — ^They contended, that the evidence was irrefifti- 
ble. The reafon of the exemption, at firil, might have 
been to encourage freemen to become importers of com, or 
to induce men to purchafc the freedom of the city. It was 
not true, as had been urged, at the trial, that fuch an cx^ 
emptioQ'was as broad as the grant \ for nonfreeimn might E ^^^ 3 
import coni^ either on their own account, or as fafkor^ ; 
«nd they, n cither 'ca&, muil pay the duty. 

Glymt^ Serjeant, Dunning, and Davenport, in fupport of 
the rule foe a new trial, obferved, that, if the plauntiff'g 
claim were to fuceeed, the duty, which, according to 
Äörf's evidence, had already funk from 1100/. a year to 
IgooA would very foon be reduced to nothing. Some of 

I 4 the 


1 790» ^^^ certificates read at the trial ftated, in explicit vrordSf 
1^ /y^^' ^ that the freeman had the property of the corn in him, for 
Cocks £ DC is the cxpreffion made ufe of was, " being mine^'' or, " being 
•gainft '^ fnj property.** It was clear the colleftor had undcrftood 
Famiuaw. them all in that fcnfe. The exemption claimed would 
amount to a breach of the oath taken by all freemen of 
London^ viz. ** Ye (hall cohur no foreign goods under, or 
^ in your name, whereby the king, or this city, might 
«< or may lofe their cuftoms or advantages." By ^^ foreign 
U goodsi in the oath, were meant the goods of non-free- 
men, and the attempt of the plaintiff was to colour fuch 
goods, whereby the city would lofe its cuftoms. At all 
events, the plaintiff could not maintain this aftion, for 
the money paid for thq farthings by the captain of the 
reffel in which the com had been imported, if to be re- 
turned at all, muft belong to the confignor, and was had 
and received to his ufe, not to the ufe of the confignee. 

Lord Mansfield,— This is a matter of value, and the 
queilion is of importance ; therefore the court will take 
time to confider of it. Independent of the oath, there is 
no doubt but that colouring goods would be a fraud. But 
the argument founded upon the oath turns in a circle. If 
the cuflom extends to fattors, as well as to owners, then a 
perfon canpot be faid to colour goods, unlefs he covers 
with his own name corn, which he is neither OMrner of^ 
nor employed to fell as a fa£lor. The words ^^ foreign goods ^^ 
in the oath, certainly mean the goods of non-freemen. If 
a new trial is granted, it can only be, either on the ground 
of apparent fraud, or becaufe fuch an exemption as is 
claifned by the plaintiff cannot be fupported by any ufagc. 
To fay this, would be to decide the caufe completely 
againil the plaintiff; whereas, if we iliould not grant a 
new trial, the city of London will not be concluded by the 
prcfcnt vcrdiü. They will only have the diiadvantage of 
a recent verdiä; againit them, in cafe they (hould try the 
qucftion again in another a£lion. 

Aston, Jußice^ — By the ftatute of i Hen. 8, c 5. («), 
It is enaäed, " That no citizen of London^ or other the 
j[ 122 3 f« king's fubjefts inhabiting within the C^inque^porU^ or any 
«* other being free of prifage or buclarage of wines, by 
<< grant, cuftom, or oüierwife, cuftom no wines of any 
«< perfon or perfons, not being free of any prifage or but* 
« laragc.'* By a charter of i Ed. 3. the king had grant- 
ed to the city of London^ f < ^fW de vims avium nulla prifk 
« jfifl/, fed perpnue inde effent quifti:' The objea of tfc> 
ftatute of Hen. 8. clearly was to prevent die abufc of that 
privilege. Mow the words in the oath taken bv freemen, 
fiave nearly the fame import as to all ^oods^ as thofe of th* 



ftatute have as to wines j and when we compare the words 1 770. 
of the charter and of the ftatute together, it feems that \ _ - j 
none but freemen, for their own wines, ure exempted from Coc kiedqs 
prifage. In the cafe of Tbe King iff Waller v. Hanger^ re- againft 
ported in Bulflrode (;i), the queftion was, Whether the de* FamshaUt« 
fendant, as executrix of a citizen of London^ was exempt- 
ed from prifage of wine which had belonged to the tefta- 
tor, and was (hipped in his Hfe-time, but not unloaded till 
after his death ? There was no decifion, the court being 
equally divided } but it is laid down by Dodderidgey Jaf- 
ticc, (although he was of opinion with the defendant,) 
that, to be entitled to the exemption, the party muft have 
the whole property {p). In the prefent cafe, therefore, if 
it ftood clear of uninterrupted ufage, I fhould think there 
would be a great deal in the obje£iion. It is obfervable, 
that there are none of the notes or certificates which ex- 
prefsly and confefTedly ftate the goods to have come to 
the parties as factors. The parole-evidence is, that the 
exemption does extend to freemen-faöors. The point to 
be determined is. To what extent the conftant ufage has 
been carried? If there Ihould be a new trial on that 
ground, the opinion of the court in granting it will not 
occafion any bias in the fecond jury. 

Lord Mansfield, on the day following, declared the 
opinion of the .court as follows : 

I left this queftion to the jury, on the foundation, that 
originally, the exemption might have been as to all corn 
configned to freemen, either on their own account, or as 
faäoTS. As there were no traces on the fubjed, in wriN 
ing, the queftion for them to try was, Whether the ufage 
had been fuch, as to warrant both the claims ? The evi- 
dence of ufage was extremely ftrong. It appeared, 
that, for fifty years, the privilege had been confidered as 
cxtaiding, hnäßde^ to both cafes ; and we cannot fup- 
pofe, that, during that time, one half of the city were [ 1*3 3 
jbols, and the other knaves. WitnefTes fwore that they 
always underftood the exemption to extend to both cafes. 
Several things which have been urged do not weigh with 
me againft the ufage ; for inftance, the argument drawn 
from the exemption relative to prifage, for the words cre- 
ating that exemption exprefsly confine it to the wines of 
^izeni — «* De vints eivium.^^ The oath proves nothing ; 
becaufe it ftill leaves the queftion to be. Whether this is 
colouring foreign goods, or not ^ The gradual diminution 
of the income fiom this duty is equally inconclufive. There 
bas, of late, been a fcarcity of com in England^ and a 
creat deal has been imported from abroad, which is a 
^htog formerly not known, Tefterday, after the argu- 

^w^ JB.R.H. 12 Joe. I. %Bulft.i. ^o)loc.eit.f.ij. 



J77Q. Blent, I revolved the queftion in my xnind, on the nature 
y^ L J of the claim, and the prefumption upon which it muft he 
CocKSEDGB fupported} v/2. that the exemption might have conunenced 
•gain 11 with the grant; and it feemed to me next to impof« 
Pai^iuaw» Cbk from the nature of the thing. It is an exemption in 
favour of citizens, from a duty granted to the city of 
London. Such an exemption mull relate to fometning 
which a citizen muft otherwife have paid. But that v% 
not the cafe \ for the citizen-fa£lor would not have paid 
any thing» If the citizeu-faftor were to take the benefit 
to himfeLF, then the exemption would in truth operate as a 
grant, for the owner would have the duty to pay, and the 
faftor would receive it, inftead of the corporation. Either 
the freeman .muft allow the farthings to his employers, 
^nd then this would be an exemption in favour of owiw 
crs not freemen, and inconfiftent with the grant to the 
city, or elfe he is entitled to receive it for his own bene-« 
fit, and then it is a grant to him« Therefore it ftrikes me 
as a thing which cannot be fupported by way of exempts 
ipn. This however is not an objection in point of law. 
It is matter to be left to a jury ; for, if they find the ex* 
emption to have conftantlj exifted in point of faä, it 
muft operate as evidence ot a grant. But this diftia£lion 
not having been particularly pointed out to the jury on the 
laft trial, it is proper that the caufe (hould be reconüdered» 
Therefore we are all of opinion, that there fhould be ^ 
new triaL 

> The new trial came^cn at the Sittings after MichadmaM 
Term, 17 Geo. 3. when a verdift was again found for the 
plaintiff; and in Hilary Xxxm^ i"] Geo. 3. a rule was ob« 
tained to (hew caufe, why the laft verdi£t ihould not be 
C '^4 3 fet afide, and a third trisd granted, which came on to b^ 
argued on the 6th oi February 1777. 

Lord Mansfield ftated the evidence on die fccond trial 
as follows : 

Benjamin Green faid, that the duty was always repaid to 
freemen % and no queftions were aiked, whether the Gorn 
was their own, or only configned to them as favors. H^ 
had known H^orm/ey, who was receiver of the duty for a 
leffee of the corporation, from the year. 1 700, and he had 
told him that the prad^ice was always to return the far 
, things. Alderman Thomfon and. &> Crifpe Gafangne were 
known to be faftors, and they had /. return«!. The 
method was, that the fa^or came and (aid, << I am a 
*< com-fa{lor, there is the copy of my freedom,, you will 
^« accept my bills, and return tne farthings." The under«* 
ftanding of the officer was, that the favors, as fuch, were 
eiuitkd to the return. He never knew xjf anj fufpicion of 
fraud OT abufe. 

: J^ßf^ 


Jofepb Fifijer had known the trade 6p years; and, in- J77Q« 
addition to his evidence on the former occafion, faid, that ^ J 

he had heard many old people talk of the privilege be- Cock&idoc 
JpDging to free^faBors. tgtinik 

William Anditfan and Richard Rted gave the fame tefti- Fam<raw. 
piony as on the former trial. % 

All the plaintio'^s witnefies faid, that many fa^^ors had 
taken up their freedom for the fake of this privilege, ^nti 
jiad paid the city 30 /. for it. 

On the part of the defendant;^ the freeman'^ path wat 

W'Uliatn Ready who was now produced on the part of the 
defendant, faid, that fmce the matter had become a fub- 
ieä of difputCi they had upderftood the claim of exempts 
100 to relate only to com which was the property of die 
(r^man himfelf . However, nineteen out of twenty of the 
dealers in com were faftors, and fo underftood to be, 
There had been no difpute till the prefent. He had conV 
ceived the re-payment of the farthings to faöors, as fuch, 
to be wrong, and had mentioned his fcntiments to the de- 
fendant, and he to the corporation^ which was the occa« 
Jipn of the prefent litigation. 

One Gimiert faid, he had been a fa£lor 20 years, and a 
freeman part of the time. *That he had been told, that 
if he were a freeman, he would be entitled to have the 
farthing« returned, and yet to charge his employer for 
them. If he had not thought fo, he would not have paid 
what he did, viz. 30/. 10/. for his freedom. Wear {p) 
bad told him, that he thought they were all forfwom; [ 125 3 
but, two or three years afterwards. Wear became a free- 
man, and then he looked upon the exemption as his right. 
The witnefs could not fay he was fatisfied; and, after 
fome time, he ufed to write in his certificates, ** Re- 
V ceivc fuch and fuch corn, from fuch a Ihip," without 
faying, •* mine," or ** my com." He mentioned the tmth 
to the corporadon, but they made no difference,, whether 
the certificates were in one form or another. 

Many notes or certificates were produced, in which the 
words concerning the com were, " ir miae/^ " belongs to 
*.« tMf* ** on my account ^^^ ^* for your humble fervant^* and 
there were none which fpecified that the com was con- 

After having reported the evidence, his Lordfhip faid : 

For the plaintiflF it was contended, that the ufage was 
evidence of igx original grant from the crown or parlia^ 
ment. That, in the original grant to the corporation, 
there might have been a provifo, that, whenever com fub- 
jc£k to the duty fliould be configned to free-fa6lors, they 


(/) Mentioned fufra^ p« 120. 


1 770, ftjould be entitled to receive the farthings to their own ufe, 
^ f That, if there was any doubt whether that could be the 

Cockshdge' origin of the exemption, it might have arifen from a 
againll fubfcquent grant by the city to the free-faftors, or an 
Fans HAW. agreement between tlie city and them. I toW the jury, 
that the ground on which we had granted a new trial was, 
an intrinfic objeftion to the exemption j that the prafticc 
might have commenced in fraud, and yet have been car* 
ried on fairly afterwards ; that it muft have been an ex- 
emption as to fadlors, in the original grant to the city, 
or an original grant to the faöors 5 that there could be 
no exemption, unFefs in favour of perfons otherwife liable ; 
but here the fa£lor would not have been liable, but the 
owner, and he was not exempted. As to its being a 
grant, I told them, I had never heard or read of fuch an 
inftance as a grant to favors ; but that this was matter 
of evidence ^ I did not know of any law againft fuch a 
grant j and, upon the whole, 1 left it to them to confi- 
dcr, whether they thought the ufagc coeval with the 
right of the city to the duty. Mr. Wallace fuggeft- 
ed to me, that I nad omitted the other ground, that the 
exemption might have originated in a fubfequent grant 
from the city, or an agreement with them ; but, thinking 
this origin lefs probable than the other, I faid no more to 
the jury. 

Wallace J Bolton ^ and Bullery again (hewed caufe. — Dun^ 
fling and Davenport on the other fide. 
[ 126 ] For the plaintiff it was urged, that no ufage was ever fo 

clearly cilabliihed. There was no deception or fraud on 
the part of the factors, nor ignorance on the part of the 
city. The only ground left for the defendant was, the 
fuppofed impoflibility that this ufage could have a legal 
origin. But it might be confidered as beneficial to the 
city, being an encouragement to the importation of corn, 
and there was nothing to hinder the crown from granting 
part of a duty to a corporation, and the reft to particu- 
lar members of that corporation ; nor was it impoflible 
that the city, fubfcquent to the grant of the duty, might 
have agreed with the freeman^-fadlors, that they fhould 
have the duty on corn configned to them. The tempt- 
ation, which this would hold out to purchafe the free- 
dom of the city, was a reafonable inducement to fuch an 
agrecmeiu. In the cafe of The Mayor and Commonalty ef 
Linn Regis v. Taylor^ it was held to be a good cuilom^ 
that freemen, being proprietors of (hips, though not fepa- 
rately incorporated, might dig gravel in a manor which 
been granted to the corporation {q) j and, in a fimilar cafe, 

a few 
(f) C S. l^L x^ Car, 2. 3 Le*u, ftates the whole court to have held the 
160. There muft be feme mfhike in caßoragood,itconcludcs that judgment 
the report of this cafe; for, thoogh it • was given for the plamtiffs. 


n few years ago, it was ruled at JV^ Priissy tliat the refi- £ 770. 
dent freemen of Nrwcajile might claim an exclufive right ^^ - - J 
in the town moor, agamft the members of the corporation Cocics£i>oe 
at large. The objcöion, in the prefent cafe, arofc, from againft 
confounding prefcriptions and cuftoms, tlie former of Fawshaw« 
which muft have a legal origin ; but cuftoms need not ; 
GateHvard*s Cafe (r), Vitier^ title Ctißom^ Archer v. Bothen-*^ 
ham (x). Day v. Savage (f), Potter v. Ncrth (//). All cuf- 
toms vary from the common law, and the very idea of a 
cuftom is, that its origin cannot be traced. As to the fup- 
pofition of fraud, the ont/s of proving lay upon the defend- 
ant, but there was as much rsafon to prefume fraud againft 
the duty, as againft the exemption. 

For the defendant, it was infifted, that the practice of 
the faftors wa^ nothing elfe but colouring the goods of non- 
freemen. All the notes held the corn out as the property 
of the f aft or. If the city .lid formerly know of the abufcj 
without correfting it, that was no reafon why it fhould 
not now be correöed. While the frauds of the faftors 
Avere kept within bounds, tlicy were not inquired into, 
but as they had increafed fo much to the detriment of tlie ['^7 3 
city, it had become neceffary to check them. No quef- 
tions were aficed of the faftors, becaufe the notes were 
contrived to anfwer the queftions which might have been 
afked. The idea of an exemption, which was the only 
ground on the firft trial, was abandoned on the fecond, 
as not capable of being maintained ; but the fuppofition of 
the privilege claimed, being part of the original grant, was 
equally untenable, becaufe the importation of corn into the 
city muft have been of a much earlier date than the exift- 
ence of faftors. It was the intereft of the corporation, 
that freemen fhould have an exemption for themfelves, 
becaufe this rendered it a defirable thing to purchafe the 
freedom of the city j but it was not their intereft, that the 
frce-faftors fliould be entitled to receive a duty on corn 
from other freemen, which would be, in fubftance, the 
cafe, if the plaintiff prevailed ; becaufe the owner would 
charge the farthing duty, which he muft pay to h}s fi\ftor, 
in the price of the corn fold to other freemen, for their 
confumption. It was faid, that, though faftx)rs might 
not be able to take by a direft grant, the city might, in 
truft for them ; but the objeftion was, that no poffiblc 
reafon could be imagined tor fuch a grant in their fa- 
vour. Though a cuftom need not have a legal origin, it 
muft not be unreafonable, which this was. The cafes 
cited were not fimilar to the prefent. The Newcaflle cafe 


(r) C.B.H. J^Jac.i. 6Cra. 59. ^ </) Hoi. 86. 
(/} C. B. H. 6 Jan. 11 AW. 14S. (») 1 ^tntr. 383. 386. 


1 7 70» had been compromifed, but there was nothing unreaibiw 
^ L J able in a cuftom for refident freemen to have an exclufive 
CocKSEDGE privilege, in what the/ only could ufe. In that cafe, the 
agaioft refident freemen did not claim a right of putting on the 
Fanshaw* cattle oi ßrangers^ nor did the freemen fhip-owners, in 
the cafe in Levinz^ fet up a right to take ballad, in order 
to fell to other perfons. The corn-faoors are not admit- 
ted to their freedom under that defcription, but belong to 
any company in which they choofe to be admitted, — (the 
plaintiff belonged to the Stationers' company.) — ^The main 
argument for the defendant was, that all the proof which 
had been, or could be, produced, could not out-weigh tlic 
internal evidence againft the claim : and it could not, it 
was faid, be fairly urged againft the prefent application, 
that there had already been two concurrent verdiös ; for 
they had been given on different grounds. 

Lord Mansfield, — The queftion, in this cafe, is, Whc-* 
ther the fremen of London have a right to be exempted 
from the duty on all corn, whether configned to them aa 
fa£lors, or their own property ? If there is no diftinäion, 
, f 128 ] the plaintiff is entitled to recover, otherwife not. On the 
firft trial, I thought the evidence of the ufage was very 
ftrong ; and, as far as the memory of people living went, 
it was impoflible to fuppofe there had been anv fraud. 
The internal objeäion, (though it had been mentioned by 
the counfel on the firft trial,) not having been particularly 
pointed out, by me, to the attention of the jury, it was 
thought proper that the caufe fliould be re-confidcred. On 
the fecond trial, the ufage has been proved more ftrongly 
than before ; and there was no evidence that the city had 
ever received, to their own ufe, the duty on com con- 
figned to freemen as faäors. It appeared, on the iirfl 
trial, that the duty had diminifhed in its produce. There 
was no evidence, of this on the laft. The oath cannot 
avail the defendant, becaufe the claim, whether well or 
ill-founded, is between the fa£tor and his correfpondent« 
He docs not colour the goods. He takes the money to 
himfelf, and does not make a deduftion in his account 
with his employer. As to the notes, whether they were 
fraudulent or not, muft depend on the faft, whether the 
claim was or was not known. Now it was as notorious 
that the corn did not belong to the fa£^ors, as if the notes 
had exprefsly faid fo. Till this difput^, no queftions 
were ever aiked. The farthings were always returned to 
N^lfin^ who dealt fo largely, and never but as a faäor. 
Perfons, who only dealt as fa£tors, have paid 30/. fo» 
jiietr freedom, in order to acquire this privilege. But the 
internal objeöion is, that the ufage muft have commenced 
in fraud (bme hundred years ago. This objc<Stion I can- 


ftot anfwer, and I left it to the jury in the ftrongeft terms ; l^^(^. 
but they have again found for the plaintiff, if I did wrong ^ — - j 
in leaving it to die jury, that would be a ground for^ new Cocksedci 
trial. But I think i did right, and that this was not a again ft 
fubjedi for a fpecial rerdi^, being merely a matter of Fansuaw. 
eridence. If the jury thought there was evidence of a 
grant to the city, but that freemen ihould be exempted^ 
and fhould receive a farthing a quarter on corn configned 
to them as favors, I fee no objeäion to it, in point of 
law. If we were to grant a third trial, we might as well 
grant a fourth and fifth. There would be no end. The 
city will not be concluded by the verdift. 

Aston, jfufiicey^This is a point of an uncommon na- 
ture, but the ufage is very ftrong. The expreflions in the 
notes may be reconciled to the truth. The only queftion 
now is. Whether the matter was fit to be left to the jury ? 
If it was not, the laft new trial ought not to have been 
granted. The court fliould have determined the caufe. 
Sut I think the matter was proper for the decifion of a [ 120 1 
tury, and that the evidence was fufficient in this caufe — 
between a faäov and the city-colle£tor. 

WiLLESi and AsHHUtisT, JußictSy of the fame opU 

The rule was accordingly difcharged ; but, the city not 
being fatisiied, they ftill refufed to return the farthings, 
and the plaintiff was obliged to bring another a£bion. This 
fecond aiäion coming on to be tried, at the Sittings after 
laft Mkhaelmas Term, the evidence for the plaintiff was of 
the fame fort and import, with what has been already 
ftated, but more corre^, explicit, and circumftantial. The 
defendant now demurred to the evidence ; and, this day, 
the demurrer was argued, by Davenport^ for the defendant^ 
and Woody for the plaintiff. 

Dawnfort divided his argument into five points, or 
Jieads: i. He contended, that, from the nature of a de- 
murrer to evidence, and upon the evidence put on the 
record, the court might, and ought to, difbelieve that the 
ufage had been immemorial ; 2. He then endeavoured to 
(hew, that the claim, whether as founded on an exception 
or provifo in the original grant, or as a truft, or otherwife, 
'could not have had a legal origin in refpe£l of the perfons 
of the claimants V 3* In refpedl of thofe who receive the 
duty ; 4. In rcfpcÄ of thole who pay it 5 Nor, j. in re- 
fpect ci ihft nature of the duty itfelf. — i. As to the nature 
and cffcGt of a demurrer to evidence, he faid, he Igiew no 
diffin-ence between that, and a demurrer to pleadings, ex- 
cept that, in die cafe of the latter, you admit, at firft, 
the truth of the fads pleaded; and,. in the former, you 
ftrft put the party on the proof of the fafts. That, when 
the fads are praved, yqu denvj on a demurrer to evidence 



1 77g, ÄS you do on a demurrer to pleadings, that the inferenee 
1^ - J contended for, follows from the faös alleged. But he 
CoccsEDce infiftcd, that although a demurrer to evidence admits the 

againtt truth of all the particular faäs, it does not admit the con-» 
Fan SHAW, clufions in point of /aB, more than thofe in point of lanu^ 
which the party offering the evidence contends for; fa 
that, (as he cOTCcived,) a demurrer to evidence may be 
maintained, even where there is fome part of the evidence 
which might be left to a jury. This, he faid, appears 
from the form of words ufed, which are, " that the cvi- 
** denc^ is not fujlcient in law, to maintain the iflue :*' 
not, ** that there is no evidence produced in fupport of 
*« the iflue." That, in this refpcö, the effeft of fuch a 
demurrer differs from a fpecial vcrdiö, and that it may be 
ufed, where the party demurring is unwilling to truft the 
jury with the inference in point of faä. As authorities 
C ^3^ ] in fupport of this doärine, he relied on what is faid in 
the Firft Inßitute (v), in Baker^s Cafe (w), in Reniger v. 
Fogojfa (x), and on the precedents in RaftalPs Entries, 
iiiU Evidence (y) i and he contended, that, according to 
the definition he had given, he was entitled to argue, that 
the particular faäs fwom to, did not eftablifli the general 
fa£l of an immemorial and uninterrupted allowance of 
the farthings to freemcn-faftors upon com configned to 
them, and not their own property. He urged, on this 
head, the appearances of fraud, in the various and ambi- 
guous phrafes and expreflions which were ufed in the 
notes or certificates.— 2. He faid the ufage, if in point of 
fa£l it had been immemorial, could ntrver have had a com- 
mencement fuch as to eftablifh a right in point of law, in 
refped of the perfons claiming. It was now agreed, that 
the foundation of the claim mud be confidered as a grant ; 
but freemen-fadors were not perfons capable of a grant. 
There was no fuch clafs of men exifted till after the time, 
of Richard I. There was no evidence of their exiftence at 
that period, nor was it poflible \ for the commerce of corn 
mud itfelf liave originated in later times. Com-fa£lors^ 
even now, have no permanent charaäer, and are not 
created by the city, by the crown, nor by any other leg^ 
authority, being the mere temporary creatures of their 
employers, who may deftroy their exiftence when they 
pleafe. — 3. As to the perfons receiving the duty, it was 
impoflible, he faid, to believe that there ever could be a 
legal commencement of an ufage, by which the corpora 
tion of London were to become die truftees, or agents and 
coUedors, for fuch a fluöuating and uncertain clafs of in- 
dividuals. The city appoints, and pays the colleßor, and 
the factors do not at aU contribute to the charges of thi^ 


{<v) Co. LtitL 72. a. {x) M. % Edw. 6. Pkwd. u 

{iv) £. R. T. 42 El. 5 Co. «w 0) /". 3 17. *. /# 319- *• 


tolleöion. — 4. As to the employers, who were to pay this 1 770, 
duty, the fame abfurdity arofe when they were confidered, \ ; 

becaufe it could not have been fuppofcd that they would Cocksedgi 
t^mpJoy factors who were entitled, over and above the againft 
allowance paid them as fuch, to levy a duty upon the Fakshaw. 
goods consigned to them. There was no confideration 
moving from the fa£lors, to the owners^ to entitle them 
to fuch a duty. — 5. As to the nature of the duty, being a 
port-duty, and paid on account of the maintenance of the 
quays and harbour, he thought that was equally incon- 
liftent with the idea of a grant to tlie frce-fadtors, for 
there is nothing done by them to fupport, or benefit, the 
harbour. Upon the whole, he concluded, tliat the claim 
could never have had a legal commencement, but muft C x^i 1 
have originated, cither in fraud, or, at beft, in miftake, 
by confounding the corn belonging to freemen who hap- 
pened to aft as fadlors, and that configned to them on 
•ccount of other perfons. 

Woodi for the plaintiff, — i. Denied Davenport's defini- 
Hon of a demurrer to evidence, and infifled, diat it admit« 
iill matters of faft which a jury might find, and only brings 
the dccifiort, upon the inference in point of law from thole 
faös, before the court. If it were otherwife, he faid, a 
J>arty might, in every cafe, take away the trial of the 
caufe from the jury, and vefl it in the court. The evi- 
dence of the ufage was not only fuch as was to be left to 
^ jury, as the court indeed had decided on the motions 
in the former action, and which was, on the prefent occa- 
fiofi, fufficient for the plaintiff, but was extremely ftrong 
fcnd fatisfaftory. To fay, whether the allowance con- 
(lantly made to factors, was obtained by frauds was di- 
reftly and exclufively the province of the jury, but there 
Was no pretext for fuppofing fraud. — 2. He infifted, that 
the aftual exiilence of the ufage or cuftom being admitted 
by the demurrer, it was certainly fuch as might have a 
legal origin in various ways. If the crown, in the original 
grant of the duty to the city, had inferted a provifo to thi$ 
died:, " but we will and ordain, that the freemen of tlie 
•* city of London fhall receive to their own ufe, that part 
" of the duty which fhall arife uppn corn configned to 
** them," there was no . doubt but that fuch a provifo 
would have been good, in law, to entitle them to fuch 
part of the duty. The king might have granted it, as an 
encouragement to them to import corn for the fupply of 
the city. It is not at all an unufual thing for a particular 
part of a corporation to be entitled to rights or privileges 
10 the exclufion of the reft, and to prefcribe for them, 
through the intervention of the whole body. This appears 
from the cafe of Mellor v. Spatenian in Saunders (2), where 

a burgefs 

(«) B. R. -ftf. ai Carn 2. I Sound. 339. 343. 
Vol. I. K 


1770' ^ burgefs of Derby prefcribed in a right of commoTf, 

; - f through the medium of tlie corporiition ; and from Brooke^ 

CocKSEDGE ^''^*^ Prefcripiion [a). The cuftom might alfo have arifen, 

again (I by a fubfcqucnt agreement between the city and the free 

■ Fanshaw. fa^lors. It was not necefiary for the plaintiff to fliew the 

txwOi origin ; it being fufhcicnt for him, if there was any 

poflible legal commencement of fuch a privilege. 

Lord Mansfield, — ^The foundation, upon which the 
plaintiff refts his title, is this ; that, by immemorial ufiige, 
[ 132 ] ^^ which there has been no interruption fmce the time of 
Richard I. frcemcii-fatlors have a right to take, to their 
own ufe, that part of the farthing duty which is paid for 
corn configned to them. The defendant denies the facl, 
and fays, there is no fuch ufage or cuftom. I fpeak to 
the fact now ; the legal objection I will confider by and 
by. But this is the fa6t upon which the parties are at 
iiliie ; and this is to be tried by the jury. Nobody elfe 
can try it; becaufc it is a conclullon of fa6l from thft 
evidence. Almoft all the objections that have been made, 
arc fuch as were very proper to be ftated to a jury, to in-* 
duce them to doubt of the faft of fuch immemorial ufage ; 
to induce them to conclude that it began in fraud, or 
miftake ; that it could not begin in the way in which it is 
claimed ^ that fuch an ufage could not poffibly be imme- 
morial : and, on the fecortd trial, all this was ftrongly put 
to the jury. But, what is now brought before the court 
on this demurrer ? Not a quell ion, whether the evidence 
was fufficient to fatisfy the jury of the fa£t of the cuftom, 
for, by the demurrer, the defendant admits every fi£t 
which the jury coutd have found upon the evidence. The 
only qucftion before the court, is. Whether, fuppofing the 
faft to be as the plaintiff' contends, and that, immemori- 
ally, without any exception fince the time of Richard I. 
the lifage has been for the freemen-faftors to receive the 
farthings, fuch ufage could, by any poffibility, have a legal 
commencement ? The plaintiff was not bound to find out 
what the aöual commencement was, becaüfe it has exifted 
from time immemorial. The city itfelf has no writing, 
or grant, to Ihew. They only fay, the duty has been paid 
to them as a right, time out of mind, by all but freemen 
for their own com. The plaintiff' fays, there is another 
qualification : " It has not been paid by freemen-faftors 
" for corn configned to them ; they have always enjoyed 
** that privilege." If, by no poffibility, fuch a privilege 
could have a legal commencement, then, to be fure, the 
faft of its exiftence does not decide the queftion ; becaufe, 
in point of law, that does not eftablilh the right •, but the 
rule of law is, tliat, wherever there is an immemorial ufage, 


(0) //. 28. \ 


the court muft prefumc every thing poßlhlc^ which could give \ 77Q, 
it a legal origin. Whether prohahk or not, is for a jury to 1 - _\ 
decide. Now, why is it not poffible that, in the original Cocksedce 
grant, the crown may have faid, for the purpofe of en- againft 
couraging perfons to take up their freedom, that no free- Fanshaw, 
man fliould pay the duty to the city, either for his own 
corn, or for corn configned to him as a fadlor? Would P 1*^7 I 
fuch a grant be void ? Certainly there may have been 
fuch a grant. But, further^ in cafes of this fort, an atl 
of parliament may be prcfumed. Many, if not all the 
ufages and cuftoms of the city of London^ are confirmed 
by act of parliament. Or, the privilege may be founded 
on a bye-law, made before time of memory. Suppofe, 
after the grant to the city, there had been a bye-law made, 
by which, for the purpofe of encouraging faftors to be- 
come free, and by that means, introducing the corn trade, 
the corporation gave them, when freemen, all the far- 
things arifing on corn configned to them; furely there 
is nothing impoflible in this ; and there is a colour for 
fuppofing that to be the ground, from the evidence ; be- 
caufe it is in proof, that the faftors purchafe the freedom 
on purpofe to acquire the privilege.- The only point now 
before the court was very fully confidered, upon the fe- 
eond motion for a new trial, and we were all of opinion, 
that, if fupported by immemorial ufage, it was impoflible 
for the court to fay, that the privilege could not have a 
legal commencement. 

WiLLES, Jußicej — I am of the fame opinion, for the 
rcafons which my Lord has given. As to one thing urged 
by Mr. Davenport^ viz. that there could be no coni- 
faftors in the time of Richard I. though, perhaps, they 
did not then cxift by that name, yet, as London was a 
flourifliing city long before that period, it muft have been 
fupplicd with corn in great quantities •, and it would be 
abfurd to fuppofe that the growers themfelves brought 
their own corn from all parts of the kingdom to the /.<?//- 
don market. When they did not come themfelves, they 
muft have employed fadors, agents, or confignees, to fell 
it for them. 

AsHHURST, Jußicey^—1 am of the fame opinion. The 
queftion now before us, is precifely what was decided on 
the laft motion for a new trial. The opinion of the court 
then was, that the cuftom might have a legal commence- 
ment. As to the evidence, there is certainly enough to 
have warranted the jury in inferring, that the ufage had 
exifted as far back as the time of memory. There was 
fufiicient to be left to a jury, and that is all that is re« 

BuLLER, Jußice^ — ^Though Mr. Davenport divided hi$ 
argument iuto five parts, it feems to me, that tlicrc arc 

yi %, but 


but two queftions in the caufe. Tiic firfl, What is the 

nature of a demurrer to evidence ? the fccond. Whether 

CocKSEDGE the cuftom fet forth in this demurrer-book, as flatcd by 
agaioft the plaintiffs couiifel, be^ or be not, good in hiw ? With 
Fans HAW. refpcft to the lirfl, I think Mr. Davenport has gone a great 
C '34 ] way too far. It is the province of a jury, alone, to judge 
of the truth of fafts, and the credibility of wltneiTes ; and 
the party cannot, by a demurrer to evidence, or any other 
means, take that province from them, and draw fuch 
queftions ad aliud txcmcn^ I think the plain and certaia 
rule is this : The demurrer admits the truth of all faös, 
which, upon the evidence (bated, might be found by the 
jury in favour of the party offering the evidence. Mr. 
Davenport puts the cafe of a fpecial verdi6^, and fays, the 
reafon for a demurrer to evidence is, that the party de- 
murring does not chufe to truft the jury. In a certain 
degree that is true ; but the reafon of not trufling the jury 
is, bccruife they may, if they plcafc, refufc to lind a fpc- 
eial vcrdidt, and then the fadts never appear on the re- 
cord. But whiCthcr the cafe conies before the court on a 
demurrer to eviilcnce, or on a fpecial verdicl, the law is 
tlie fame. Now, if this caufe liad been put into the 
fhnpe of a fpecial verdiiä, wliat mufl have been ftated on 
the record ? The jury could not find all the evidence 
. fet forth In the demurrer, but muil have pronounced, 
upon the facl, whctJier or not fuch an immemorial cuf- 
rom hnd c:Jli:cd, and then i: v/ould have been for the 
court to decide, whether fuch a cuilom was good in law». 
I agree with Mr. IVood in his definition of a demurrer to. 
evidence 5 and I am clear that there was fufficient to be 
left to a jury, and, the re fore, on the iirft queftion, there 
feems to me to be no doubt at all. As to the fccond^ 
though I have no doubt in my own mind, yet I have: 
known fo much of the caufe before, that I purpofcljr 
avoid giving any opinion upon it. 

Judgment for the plaintiff [5]. 

fs] I-^pon this judgment, the de- ant; and T. 21 G. 3. by Da'vcnpert 

fendant brought a writ of error in the for the plnintiiF in error, and Chambre 

Exchequer Chamber, where the caule for ihc defendant. It now flands for 

has been twice argued, 'vi^, M, 21 judgment. ('f^acatioiisJ'iQr T. 2i Geo.. 

Geo. 3. by Mair, Scr'jtSini, for the plain- 3.) [ j 50] . 
tiffin error, ^Lad Jf^ood for the defend- 

[t 50] In E. 22 Gfo, 5. the Judges of King's Bench, except Eyre, Baron f 

of the Common Pleas, and the Barons, and,, accordingly, the judgment was. 

of the Exchequer, delivered their opi- affirmed. Afterwards, a writ of error 

nions, and reafons, Jeriatim ; when was brought in the Houfe of Lords, 

tiiey wo-e all of opinioa with (he Court where^ after th« cafe had been argued 


.at the bar, the following que/lions unanimous opinion of 

were put to the Judges ; viz. i. Whe- theJudgcsprei'ent,(£>Tr, 

ther the evidi^nce and fads admitted. Baron, being one,) up* p 

upon which this demurrer has been on the nnl: queJlion, in k*hdgb 

joined, are fufnci em, inlaw, to main- the atiirmadve ; and p^^, '" 

tain the i/Tue for the c'efcndant in cr- fubmitted to the Houfe, '^^«haw. 

ror? 2. Whether, if the evidence be that, the firllqueftion beingfoanfwercd, 

infufficient, or uncertain, a new -venire any arifwer to thcfecond was unnecef- 

ought to have been awarded ? fary. Upon this, the judgments of the 

Gould, Jullice, (in the abfence of Court of B. R, a.rid -Cam, Scacc. were 

^.kynner, Chief Baron, who was coi>- (5 June, 1733^) unanimoufly affirmed, 
fined by indifpofition,) delivered the 

The King agcinß the Mayor and Bur- C ^35 3 
GESSEs of Lyme Regis, on the profecu- Wcdnefday, 
tion oi \k\t HouGiirahle Henry Fane. »sth April. 

A Mandamus having ifRied to rcftore the Hottourahk A derical 
-^ Henry FanCy to the ofiice of a capital burgefs of the »»»fta^^c may 
torough of Lyme Regisy the corporation returned, That one ^J fhc^rcturii 
Coadey one of the capital biirgefies, had exhibited ** rrr- xo a msnda' 
^* tain articles of comphinf^ againft Fane : that, by ** the mus, after the 
•** /aid articles of complaint y^ he had charged him with hav- «^tum has 
ing been duly fumnioned, and having negleöcd to attend "*^" "^ • 
the corporate meeting, for the eledlion of a capital burgefs 5 
and that, by " the fciid articles of complaint," he had alfo 
charged him with non-refidencc, and negleft of his duty as 
a capital burgefs : that it was ordered, that a copy of the 
faid articles Ihould be given to FanCy and that he ihould 
have notice to appear, at the next meeting of the mayor 
and burgeflcs, to anfwer the feveral articles againft him, in 
the faid comnhiint contained, and to (hew caufc, why he 
Ihould not be removed and difplaced from his office : that 
the copy and notice were fervcd : that a meeting was had, 
where he appeared, and was charged with, and accufcd of, 
the non-re(idence, abfences, contempts, .negle6ls, breaches 
of duty, and mi(behaviour, fpecified and contained in tlie 
faid feveral articles of coniplaiiit fo exhibited againft him. 
That the meeting heard evidence in fupport of the ** faid 
^feveral articles" mentioned and contained in the faid com- 
plaint, and in Fane*$ defence, and, alfo, what was alleged 
by him and his counfel why he fliould not be removed 
from his ofiice of capital burgefs, " for the feveral matters 
" in the y2i/rf/w-//V/i'x of complaint mentioned j" and, there- 
upon, it was adjudged, that he was << guilty of the non- 
/^ refidencc, abfences, contempts, neglefts, breaches of 
" duty and mifbehaviour, and other matters objefted and 
** charged againft him, in and by the fecond and fourth arti-- 
<* cks of the faid complaint ;" and that, thereupon, they had 
K 3 reiolveii 


J jijQ^ refolvcd to remove him from his office ; and had removc<i 
1^ _^ f him ; and that he had not been elected fmce ; fo that they 
The King could fiot reftore him. 

again ft This return had been filed laft term. The defendants, 

Lymb afterwards, difcovered that they had, in that part of it 
Regis. which dated the conviftion, fet forth, that the profecutor 
t '3^ ] had been found guilty of the charges in the third and fourth 
articles y without having ftated, in the preceding part, that 
the complaint confided of four articles ; that, on the con- 
trary, by the recital of the complaint in the return, it 
feemed rather to be ftated as containing only two j and 
that it did not therefore certainly appear, that the articles 
on which Fane was convifted, were the fame which were 
fet forth as containing the accufations again ft him. A 
motion was, therefore, made this term, (on Monday the 
26th of April ^ and a rule granted, to (hew caufe why the 
defendants fhould not be at liberty to amend, by inferting 
the words, " fecond of the^^ and ** fourth of the^^ in that 
part of the return which recited the articles on which he 
was accufed, fo as to make it run thus, ** and^ by the fe- 
** cond of the faid articles of complaint, charged and ac- 
** cufed the faid Honourable Henry Fane^^ &c. and again, 
•* and by the fourth of the faid articles of complaint," &c. 

The Solicitor General^ Dunning and Rooke^ now ftiewed 
caufe. — They faid, enquiry had been made at the office, 
and that no inftance could be found, where the court had 
permitted a return to be amended after it had been filed, 
and, thereby, made a record of the court. That the cafe 
of the amendment of a return in Shower (b) (which had 
been cited when the rule was obtained), was upon a mo- 
tion which did not appear to have been oppofed, and it 
did not appear that the return, in that cafe, had been filed. 
That, in the cafe of Lepara v. Germain (r), after a plea in. 
abatement on the ground of an erroneous addition, viz. 
that the defendant had been ftated as Knight^ inftead of 
Knight and Baronet j the court refufed to permit an amend- 
ment, by inferting the words " and Baronet^' although the 
proceedings were all in paper. 

Bearcroft^ in fupport of the rule, relied upon an affida- 
vit, which ftated, that the omiffion of the words, npw 
prayed to be inferted, had arilen from a mere miftake of 
the gentleman who fettled the draught of the return, and 
who had ftruck his pen through thofe words. 

Lord Mansfield, — It is very eflential to the adminiftra- 
tion of juftice, that flips, or miftakes of the pen, (hould 
not be fiital. I am fatisfied this is a mere blunder, and 
not a trick 5 and the amendment fuggefts itfelf upon infpec- 


{t>) Rex V. Mayor of Cbicheßer, T. (c) £. 2 Ann. B. R. i SaU. co. 
3 tf^. I3 M. 1 Sh. z-ji. '' 


tion. As the return ftands at prefent, it is nonfenfe. 

There is no cafe cited, where the court has rcfufed to 

amend fuch a miftake, ahhough the return has been The Kino 
filed. The cafe in Shower feems to be an authority to the againft 
contrary. • Lyfc|E 

The rule made abfolute ; the defendants undertaking, if Recis^ 
an aöion for a falfe return fhould be brought, to take ihort 
notice of trial, and not to bring a writ pi error, if there? 
fliould be judgment againlt them [4]. 

[4] There were four other returns, mutandis,) and the mi/lake in the 

to different writs of /»iäW/jt^?!«/, in' which draught hnd been copied in all of 

fimilar amendments were moved for, them. — V'uU /upra^Richarils \, Brtrwtu 

and granted at the fame tjme with this. p. 1 14 to 116. 
The returns were the fame, (mutatis 

N LoNGCHAMP ci7aiTift Kenny. Tiuurday, 

' s O ^ a9th April. 

I^HE plaintiff was a waiter at one of the great fubfcrlp- I^onc pcrfon 
tion-houfes, or clubs, in 5/. Jameis Street, of which °^^^'^*^ P^^^" 
the defendant was the mailer. Each of them had received, cntruftc/^ * 
from Mrs. Qornelys^ a number of mafquerade tickets, to another to be 
; difpofe of, for which they were to account, after tlie maf^ foh* at a fixed 
queradei by paying the value, or returning the tickets, P"^^ and, at 
Kenny had got poffeflion of one of the tickets which had the eoods are 
been delivered to Longchampy and, when Mrs. Cornelys\ to be re-deli- 
agent came to demand an account of Longchamp's tickets, vercd, or the 
he was told, by Longchampy that Kenny had had one of J'/|'J^^j*"°"^"^; 
them, and he mull pay for it. Upon this, the agent went fufes 10 do 
and made a demand on Kenny, who faid, " Well, if I had cither, and 
** it, what then ? Go to the pcrfon who received it of the perfon to 
^* you, and let him pay you." Longckatnp was then threats ^'^o'" ^l^cy 
ened with an arreft, on which he paid live guineas, (the ^^i being 
value of the ticket,) to Mrs. Cornelys, and then brought threatened 
this adlion againll Kenny. The declaration contained a with an ac- 
count for imney hnd and received^ one for money paid, laid ''^"j ^^y^ **'* 
onty and expended, and one for money lent. The caufe was j^/ 0^",^^ 
tried at Weßminßer, on Thttrfday the 1 8th of February fuch peifon 
1779, before Lord Mansfield. The plaintiff, befides the may recover 
above facls with regard to the ticket, endeavoured to prove ^^! J"'" "• 
a fum of money due for wages, but, there being no count ^^|" tooIc"pof- 
for wages, nor for work and labour, it feemed clear that fcfnon of 
he could not recover on that ground ; and, the jury having them, in an 
found a verdicl for him, with live guineas damages, they a<*^'on ^^^^ 
mentioned that they found this fum exprcfsly for the ticket. ll'^'J^J^ 
It appeared, that the defendant was apprifed, that the i-c:liaps, in 
plaintiff meant to fue him for the value * of the ticket, and one for money 
that he came prepared to refill that demand. Lord Mans- /*«'^- 
fiELD, at the trial, exprefled great doubt, whetlier the *[ 138 ] 
'K 4 a^^iP» 


adion could be maintamed, cither on the count for fn&ffcf 

^ I paidy (on which the plaintifPs counfel relied,) or on tliat for 

Long- m:?my had and received. He faid, he would referve the 
CHAMP quelcion, for the opinion of the court, on a motion for a 
againit non-fuit — (It was clear that non;: of the evidence applied 
Kknny. to the count for money lent.) 

Jbuntiingy and Cowper^ now (howed caufe againft fetting 
afide the verditl. — Bcarcrofi^ and Mitigay, on the othc^ 

For the defendant, it was contended, that trover was the 
proper form of a£lion. In a count for money paid, the 
words, " at the defendant* s fpecial inßance and requefly'* are 
not mere words of courfo. There mult be a privity in the 
tranfaclion, between the parties, in order to fupport fuch 
a count ; and, as to the count for money had and receivedj^ 
though fuch privity is not neccflary to fupport that, yet it 
muft appear, that money, which ought to have been paid 
to the plaintiff, had, in fa£l, been received by the defend-». 
ant. In this cafe, there v/as no proof that the ticket had 
been fold, or any money received for it, by Kenny, 

Lord Mansfilld, — It is ceitain, that, where the de- 
mand is for a fpecific thing, an aftion cannot be maintained 
in this form. Great benefit arifes from a liberal extenfion 
of the a6lion for money had and received ; becaufe the 
charge and defence in this kind of a6lion, are both go-, 
vcrncd by the true equity and confcience of the cafe, 
But it mull not be carried beyond its proper limits {b). The 
plaintiff muft never be permitted to turn the generality of 
the count into a furprize upon the defendant, by deferting" 
the ground which the defendant was led to think the only 
matter to be tried, and reforting to another, of which he 
could not have the leaft fufpicion. If the prcfent aftioa 
had been brought without notice of the nature of the de-- 
mand, I Ihould have thought it could not have been fup- 
ported. But, here, the defendant came prepared. If he 
fold the ticket, and received the value of it, it was for the 
plaintifTs ufe, becaufe the ticket was his. Now, as the 
defendant has not produced the ticket, it is a fair prefump^ 
tion that he has fold it, 

AsHHURST, and Buller, Jußuesy were inclined tQ 
think, that the evidence would have fupported the count 
for money paid. Ash hurst, JitjUce^ compared this cafe 
to that ot a furety, who, by paying the debt for the prin- 
cipal, favcs him from being futd, and who can maintain 
t 139 ] an aöion againft him for money paid. In like manner, he 
faid, the plaintiff here had paid the five guineas under a 
compulfion brought upon him by the defendant, and had 
thereby faved him from an a£lion. But they gave no deci- 


{h) Vide ßpra, Wtfton v, Dovfnesp jlf, 19 G. 5. p. 23, 2^ 


^ve opinion on that point ; being clear, that the count for 
jßonej h^d and received was maintainable. 

The jrule difcharged. 



GooDTjTJ-E, Leflee of Fowler, and Another, Thurfday 
a^ahß Welford. *9th Ap,iu 

^I^HIS was an ejeftment, in which the lefTors of the 
-*- plaintiff claimed under tlie will of one Elizabeth Btz^ 
fty. The adlion was tried before Lord Mansfield, at 
Weßnunßery at the Sittings after laft Hilary Terntf and one 
HearUf who was named executor in the will, and was alfo 
devifee of a reverfionary interell, expe£tant on an eftate 
for life, in fome copyhold lands part of the eftate devifed, 
was called, on the part of the plaintiff, to prove the fanity 
pi the teftatrix, which was impeached by the defendant. 
To obviate the objeftion of intereft, he had furrendcred 
his eftate in the copyhold lands to the ufe of the heir at 
law, but he had refufed to accept the furrender. 

The counfel for the defendant infifted, that Hearle was 
^n incompetent witnefs ; i . Becaufe the furrender was in- 
cffeöual, and did not cxtinguifh his' intereft, not having 
been accepted j 2. Becaufe he had a£led in the executor- 
ihip, having paid different legacies, and, therefore, had 
rendered himfelf liable to be fued, if the will (hould be fet 

Lord Mansfield over-ruled both objeftions, and, the 
witnefs being examined, the jury were Satisfied of the fa- 
pity of the teftatrix, and found a verdift for the plaintiff. 

On a rule to fhew caufe why there fhould not be a new 
trial, which came on to be argued this day, Bearcroftf 
Dufiningj and Boltotiy were of counfel for the defendant.-^ 
The Solicitor General^ and Lane'^ for the plaintiff. 

For the defendant, befides the two objections to Hearle % 
evidence which had been made at the trial, it was now 
contended, that, as executor, he was entitled to the refidue 
of the perfonal eftate not difpofed of by the will, and 
yras, therefore, interefted, on that account, to fupport it. 
One claufe in the will was in the following words, ** I de- 
^* vife and bequeath to E* Lawrence all the, reft of my 
** goodsy platCj and cloaths ," and it was contended, that, 
although the word *' goods ^^ had it been ufed alone, 
would perhaps have comprehended the whole peribnal 
eftate, yet it appeared by the fubfequent words, that it 
was only ufed to exprefs a fpecific legacy, and therefore 
the reft of the perfonal eftate would veft in the executor, 
who had no legacy given him, which could raife a refult- 
|ng t^ft in favour of the ne^t of kin. — ^To (bew> that no« 


-An executor 
who takes no 
beneficial iu- 
tereft, is a 
witnefs to 
prove the fa- 
nity of the 
tettator.— If 
a perlbn who 
is interctted 
execute a fur- 
render or re- 
lea (e of his 
intereft, he 
may be exa- 
mined as a 
witnefs, al- 
though the 
&c. re f ufe to 
accept the 
furrender or 

[ 140 3 


lyyg. thing paflcs by a releafe or furrcnder, unlefs accepted by 
I — - f the perfon in whofe favour it is made, they cited Perking 
GooDTiTLE ^'^/^* Surrender (r), and Shephnrdy fame title (d). 

againft For the plaintiff, in anfwer to the objedlion that Hcarle 

WiLFQRD, might be liable to be fued for what he had done in the 
charaftcr of executor, if the will were fet afide, the caff 
of Lonve v. JoUiffe [e) was relied upon, where one Doveyy 
an executor who had releafed a legacy given him by the 
will, and, therefore, took no beneficial interell, was ad- 
mitted, on a trial at bar,, to prove the teflators fanity, al- 
though he was objefted to, on the general ground of his 
being liable to be fued for his adts as executor, if the will 
fhould be fet afide, and, alfo, becaufe he had a6l:ually fold 
a fet of chambers which had belonged to the tcilator, and 
• was, therefore, anfwerable to the purchafor for the title. 
The counfel for the defendant laid, that, in the cafe of 
Lonve V. JoUiffe^ the purchafer of the chambers was in 
court at the trial, and, upon the objedlion being made, 
offered to releafe to Dovey^ and that Dovcy was only ad- 
mitted as a witnefs in confequence of that offer [i]. 

Lord Mansfield, — ^^rhis will has been tried three or 
four times \ and there have been contradictory verdi£ls. 
On the trial, in the prefent inftance, the jury were fatif- 
fied. But a motion has been made for a new trial, not on 
the merits, but on the incompetency of a witnefs. When 
the witnefs was produced, the counfel for the plaintiff read 
his furrcnder of the copyhold eftatc left to him by the will, 
but it was objected, that this furrcnder had not been ac- 
cepted, — ^The witnefs, on being queflioned, faid, he had 
a£ted as executor, and that the legatees had received their 
legacies under the will. On this ground alfo, it was con- 
[ 141 ] tended, that he was interefled, becaufe, if the will fhould 
be fet afide, he would be anfwerable for having adled de 
Jon tort. But he was not objefted to, at the trial, as being 
entitled to the refidue of \hc pcrfonal eflate. Now, on 
fuch a motion as the prefent, no objection to a witnefs 
fliould be received which was not made at the trial. If 
this new objedlion had been made then^ it might perhaps 
have been ihcwn, that there was no refidue, or a releafe 
might have been given, fa'r. — As to the other objeöions. 
I. The bequcfl to the witnefs would certainly have gone 
to his competency, if he had not parted with his interefl ; 
but, as he has parted with it, as far as depends upon him, 
third perfons have a right to his teflimony, and the furren- 
dcree fhall not deprive them of it, by refufing to accept 


(c) ^ 6c8. [i] j^«. For, according to the re- 

(d) iiheph, Tauchfl, p. 307. port of the cafe in i Blackfl, tho 

(e) B,P.,E, 2 G. 3. Singe reported, court thought there v^^s no occafion fjOT^ 
I LiacJiß. 365, " the releafe; loc. cit, p. 366, 



the furrender [ocJ* i]. 2. It is contended, that, kian aöion j 770. 
froncerning land, an executor is not a competent witnefs, ^ _ _ ■ 
bccaufe he may be fued for his adminiftration of the per- Goodtitle 
fonalty. But he certainly has no immediate interefl in the againft 
a£lion ; and I remember its being determined by Lord Hard-- W^lfo^ld. 
nvichcy on a petition for a commiiEon of review, and after* 
wards by the Delegates, that it is no objetHon to an execu* 
tor's teftimony, that he may be liable to anions as executor 
de foil tort [c:> 2]. 

WiLLES, Jußke^ — It IS clear that an executor in truft 
may be a witnefs [f 51]. If the teftator had flopped at 
^he word *' goodsj* the legatee would have taken all thp 
refidue ; but the addition of the words *' plote and cloaths\ 
may reftrain the meaning. But the objedlion on this 
ground was not made at the trial, which is a rcafon for , 

not fetting the verdift aiide. Befides, on a new trial, the 
witnefs may eftablifh his competency, by releafing any in- 
terefl he may have in the refidue. As to the furrender, I 
think it operates without the aflent of the furrenderee, and 
if, on three proclamations, the furrenderee would not come 
in X.O be admitted, I tliink the lord might take advantage of 
it, as a forfeiture. 

AsHHURST, Jußice^ — Every objedlion of interefl pro- 
ceeds on the prefumption that it may bias the mind of the 
witnefs ; but this prefumption is taken away, by proof of 
his having done all in his power to get rid of the interefl. 

The rule difchargetL 

[t? l] Bent v. Baker, B, R. H. " himfclf." i i>. mil. 287. 290. 

29 Geo, 3. 3 Term Rep. 27. 35. t> And, in Fountain v. Coke, B. R.E. 

[t^ 2] Vide Bailie wAf'tlj'on, i^Jan, 26 Car, 2. I Mod, 107. it is faid by 

1744, cited 4 Bitrr, 2254, 2255. Lord Hale, *' an executor may be a 

[t 5O 1" ^^ ^' Tracej, Cane, M, *' witnefs in a caufe concerning the 

1715, Lord Cöw/^r determined, ** that '* eflate, if he have not the furplufage 

" a grantee, when he appears to be a " given him by the will ; and fo I have 

*' bare truftee, is a good evidence, to •* known it adjudged." 
** prove the execution of the deed to 

[ 142 ] 

Martyn agahjl Hind. %%l' 5°* 

'T^HIS was a cafe referved for the opinion of the court. ^ pjfon^'^a '^^ 
-■' The caufe had been tried at the Sittings in London (a), n't/e 10 the 
after lafl Hilary Term. — The declaration flated, tliat the de- bifhop by 
fendant, on the 13th of February 1769, by an inflrument which he ap- 
in writing, undertook and promifed to retain and continue curate of Ihis 

the church, and 
undertakes to 
continue hjm and pay him a falary, till be fiall be otberxuife provided of fome ecclefi* 
sftlcal preferment f or for fault by ,bim committedy Unufuliy removed^ he cannot remove him, 
without caufe, while he continues le^tor of thai panfh, and during that time the 
curate may recover the falary in an aflion upon the //>/«.— But if the reftor hbord ßdt 
preferred to another living, the obligation ceafes.— A readerOiip is not ecclefiaitical 
preferment within the meaning of fuch a title. 

(«) By confent ; for the venue was laid in MiddJefex. 


the pirjntiff to ofliciatc as curate in the parifh church of St. 

Antty JVeßmirßtr^ until othcrwife provided of fome eccle* 

JMartyn fiaflical benefice, unlcfs, by fault by him committed, he 
agamit fhould be lawfully removed ; and to pay him 50 guineas a 
ii^ND. year during tliat time \ that the plainriiF had not been pro- 
vided of any other eccleii.iftical preferment, nor hiwfully 
removed, and that the defendant had not, from the faid 
13th of February 1 769, retained and continued him curate 
of the faid church, and permitted him to oluciate therein^ 
and had not paid the 50 guineas a year, ^c, — Pica, — Non 
ajfum^tt. — The cafe itatcd the inllrument on wliich the 
action was brought, and which is called a TitU^ which was 
in thefe words : 

« To the Right Reverend Father in God Richard Lord 

** Biihop of London, Thefe are to certify your Lordfhip, 

*< that I Richard Hindy redor of iSt. A/ifi^ Jf^eßmiti/Icr^ in 

I « the county of Aiiddleßxy and your Ix)rdfliip*s diocefe of 

I *• London^ da hereby nominate and apj>oint the Revc* 

1 " rend Themas Martytt^ to perform the oiHce of a curate, 

** in my church of St. Ann aforefaid, and do promife to 
! ♦< allow him the yearly fum of 50 guineas, for his mainte- 

i •< nance in the fame, and to conilnu: him to officiate in 

j ** my faid church, until he lliail be othcrwife provided 

i« with fome ecclefiallical preferment, unlefs, by fault by 
" hir.i committed, he lliall be lawfully removed from the 
i «* fame *, and I hereby fokmuly dcchire, that I do not 

^ «« fraudulently give this certificate, to entitle the faid Tho- 

*« mas Alartyn to receive holy orders, h;:t with a real in-» 
<< tcntion to employ him in my faid church, according to 
<* what is before cxpreiTed. Witnefs my hand, this 13th 
" day of lebriiary 1769, R. Iii/id.'^ 

The cafe tlien ilalcd, that on the 6th of J/dy 1778, the 

church of St. Ann had become vacant, on the defendant's 

having taken o^icr preferment, {viz. the living of Rochdale^) 

■ and lie had paid the plaintii'i his falary, as curate, up 

to that time. 

r j^^ -| About the year 1776, upon a difagrecment between 

Hind and Miirtyn ; Hindy after uiviiuf him (\:: months' notice 

to quit the curacy, had rcfufL'd to permit Martyn to offi» 

ciate, and had difeontinued the payment of his fiuary, 

upon which Martyn brouj^ht an r.divjn, in this court, finii-r 

lar to the prefent, on the written inllrument above fet 

forth, and obtained a verdicl for the arrears then due \ 

but the queftion, whether he could maintain the adlioUi 

\ being brviught before the court in Eailer Term, 16 Geo. 3, 

I on a motion for a nev/ trial, it was looked upon as a matter 

i of importance, and entirely new,; and, after it had been 

fully argued at the bar, the court took time to confider. 

The objedlions made to the aöion, on that occafion» 
nn'cre three, i. It was contended, that the inftrument did 



not contain any contraci between the re£lor and curate, j 770. 
nor any promife from the latter to the former. Tlvat it i - — _f 
vas merely an engagement and indemnity, by the re<Slor to Martyn 
the bifliop, founded on the ftatute of 12 j4ntj. ß. 2. r. 12. againft 
and on the canons, by which the bifhop, if he ordain a Hikik 
perfon who has no curacy or preferment, is himfclf liable 
to maintain him. That, if any perfon was entitled to fue 
the defendant, it was the bifliop. That Martyn was not a 
party to the inftrument, and that the undertaking contained 
in it, was, as to him, without confideration ; that there 
was no reciprocity of x)bligation between Hind and him, for 
that he mi;Tlit ceafe to a<tl as curate whenever he pleafed. 

2. It was fa:d, that Martyn had never obtained a regular 
licence, (which ought to be under feal,) to oinciate as a 
curate, which it was incumbent on him to have done, i» 
order to entitle himfclf to the benefit of H'ukT^ undertak- 
ing, fuppcfing it could be confuicred as an engagement ta 
him. That a licence v/as in the nature of an inveftiture t3 
a curate; and that, not being licenced, he was certainly 
removeabie at the pleafure of the reclor, and could not 
maintain this a£tion as curate. Cafes were z\\o cited witli 
a view to fhcw, that all curates are removeabie at the plea- 
fure of the reftor, ^c«z. Piicc v. Pratt {<:), Bott v. Brabalon 
{b). The Attorney General v. Breretou (r). Birch v. IVocd {d), 

3. Martynj fince his nomination to the curacy, had been 
chofen to the rcaderßAp of the fame parifli, with a falnry of 
30 /. and it was contended, that this was eccleßaßical pre-* 

ferment y within the meaning;; of the inilrument, or title. That 
although many readerihips were fuch as could be exercifed 
by laymen, (according to the account of their duty in Burn [ 144 1 
(/"), and other writers on the ecclefiallical law,) this parti- 
cular readerfliip had fun£Vions belonging to it which could 
only be performed by a clergyman \ i/icli as aflifting in the 
adminiftration of the facrament. 

In anfwer, i . to the ßiß objeöion, it was argued, that 
the title was, in fubflance and efle6l an engagement 
with the plaintiff. That the words were, *< / do promife to 
*^ allow hiniy not, " / do promife to indemnify you^ &c.'* 
That, if the inftrument had been a deed under feal, none 
bat perfons ftric^ly parties to the deed could have main- 
tained an action upon it •, but the cafe was diflPerent with 
regard to a common undertaking in writing, like the pre- 
fent. That it had bv;en determined, in the cafe of Button 
T. Pookf that, on a promife made to one perfon, for the 
benefit of another, an action may be maintained by the* 


{m) BujJnajZ'^j^ (d) 2 Salk, 506. 

\h) Ncy 15. (/) ßurH. LcL Lqm^ titii JUatkr. 

^\ « ^««- 4*5- 4»9» 


J 770. perfon for whofe benefit the promife was made {g). That 
g_ - - _; the fum of fifty guineas was more than was required by 
Martyn any canon, or act of parliament, and, therefore, if an 
againft allowance to the extent required by law (hould be confidered 
Hind. as an indemnity to the bifliop, yet a falary exceeding that al*- 
lowance could only arife from a contraö between the reclor 
and curate. That the confideration for the falary was the 
performance of the duty. 2. To the fecond objection, it 
was anfwered, tliat no part of the canon law makes a 
licence neceflary. That the aft of uniformity requires it 
for lecturers and preachers, but for no other perfon s (>6) ; 
and, as to tlie cafes mentioned, to Ihew that all curates arc 
removeable at pleafure, none of them had eflabliflicd that 
dodrine. That Birch v. IVood had not gone further than a 
rule to fhew caufe. That the cafe in Bunbury had only 
iiecided^ that a curate has not fuch an intereft as to be en* 
abled to fue for tithes ; and that, in the cafe in Fezey, 
Lord Hnrdnv'icke had ufed the exprefiion of ** common cu* 
** rates," and applied what he faid to them^ in contradiftinc-* 
tion to thofe who have a permanent interell in their office* 
That the general meaning and objeft of a licence is to 
attcll the good morals of a clergyman, when he goes into 
a new parifli, but that fuch atteftation was unnecefTary 
here, as the bifliop of the diocefe had attefted the fame 
thing, in as llrong a manner, by ordaining the plaintiff'. 
3. As to the readerfhip being an ecclefiaftical preferment, 
the account given of the office in the writers on the eccle- 
fiaftical law was relied on ; and, as it appeared, that, al- 
ii ^45 3 though in fome former appointments in this parilh, part of 
the duty which the reader undertook was to affift in admi- 
niftering the facrament, nothing of that fort was ftipulated 
for in Martyn^s appointment ; it was infifted, that his office 
as reader was fuch as a layman might hold and execute as 
well as a clergyman. 

Afterwards, in the (iime term. Lord Mansfield deli- 
vered the opinion of the court, to the following cffcft : 

Lord Mansfield, — At the trial, the defendant attempted 
to fhew, that the plaintiff was lawfully remowed for ßiu/t hj 
him committedy and offered evidence to prove the irregularity 
of the plaintiff's life and behaviour ; but I would not fuffcr 
tliis evidence to be given, being of opinion, either that the 
reftor ought to have reprefented his conduct to die bifhop, 
and applied to him to remove him, or, if he himfclf could 
remove him on that account, that he ought to have notified 
to him that the caufe of his removal was his immoral beha-* 
viour, which he had not done. I am ftill of the fame opi- 


C^) B, R. M 1^ l^ M 30 Car^ z. {h) 13 y 14 Car* 2. c. 4. J i^w 
1 Ventr. 318. 332. < . 


nion, as to that part of the cafe, as at the trial, and no 177Ö, 
objedlion has been made to it, on the argument. But I i / r 
defire it to be underllood, that this does not imply an opi- Martyn 
nion, that the bifhop may not remove a curate, nor even again H 
that the reftor may not, for juft caufe, properly notified to Hind. 
the curate. Thofe points (till remain open. As to thq 
Jirß of the three objeftions made on the part of the defend- 
ant, it will be neceflary to confider the nature of titles to 
the biiliop. The 33d canon of 1603, is in the following 
words : " It hath been long fmce provided, by many de- 
*< crees of the ancient fathers, that none (hall be admitted, 
<* either deacon, or priell, who had not firft fome certain 
" place where he might ufe his fundlipn : according to 
** which examples, we do ordain,* that, henceforth, no 
** perfon fnall be admitted into holy orders, except he fhall, 
*« at that time, exhibit, to the biihop of whom he defireth 
** impofition of hands, a prefentation of himfclf, to fome 
•* ecclefiaftical preferment, then void in the diocefe ; or 
** (hall bring, to the faid bifhop, a true and undoubted 
*< certificate, that, either he is provided of fome church 
•^ within the faid diocefe, where he may attend the cure 
•** -of fouls, or of fome miniftcr's place vacant, either in 
<* the cathedral church of that diocefe, or in fome other 
** collegiate church therein alfo fituate, where he may exc- 
** cute his miniftry ; or that he is a fellow, or in right as 
** a fellow •, or to be a conduct, or chaplain, in fome col- 
** lege, in Cambridge^ or Oxford ; or except he be a matter 
.** of arts of five years (landing, that liveth of his own 
** charge, in either of the univerfities ; or except, by the 
*' bifhop himfelf that doth ordain him miniller, he be [ 146 1' 
** fhortly after to be admitted, either to fome benefice, or 
** curatefliip, then void. And, if any bifhop fhall admit 
" any perfon into the miniftry, that hath mne of thefc 
*' titles, as is aforefaid, then he (liall keep and maintain 
** him with all things neceflary, till he do prefer him to 
** fome ecclefiaftical living : and, if tlic faid bifhop fliall 
** refufe fo to do, he fhall be fufpended by the archbifhop, 
** being afTifted with another bifhop, from giving of orders, 
" by tJie fpace of a year («)." It appears from this canon, 
and from Gibfon^s conmientary upon it, that a pecuniary 
provifion is not tJie only object of a title, (for a title by pa-^ 
tritnony or penfion is thereby cottßruElively taken away (i),) 
but that one purpofe of it is, to afTure the bifhop that the 
perfon to be ordained has fome church where he may ex« 
ercife his funäion. And if, after being certified of that 
faä, the bifhop ordains him, and he is afterwards re- 
moved, the bifhop is not liable to maintain him. And, 


^ (0 BunCs EccU Lam), title Ordina- (^) Loc at. Note (/). 
ti^Bi Gi^. W, /• Tit. 6» c. 3. 


1 770. therefore, the bUhop, in this cafe, can have no claim of 
V - J indemnity againft tlje defendant. The title is only a ccrti^ 
Mart YN ficate to the biihop, of the fa£t, that the re<äor has under^ 
againft taken to employ him, to pay him, and to continue him in 
Hind. the curacy, till provided in fome other ecclefiaftical prefer- 
ment. It is difficult to conceive how any queflion could 
be made on this point, or how a doubt could have been 
entertained in the cafe of Button v. Poole^ wliich, however, 
was not near fo ftrong as the prefent. As to the ßconä ol>» 
jeäion, the biOiop having ordained the plaintiiF on this 
very title, there furcly cannot be a ftronger licence. Whe- 
ther it is fuch as would fatisfy fome penal ftatutes, may be 
a critical queflion ; but we are of opinion, that it does not 
lie in tlie defendant's mouth to fay, that Martyn has no 
licence, when he himfelf has admitted him to aö as his 
curate, and has never before objeded to him on this ac«* 
count, or given him notice, and an opportunity of obtain- 
ing one in form. With regard to the third point, after 
the fulleft confideration, we find it impoffibfe to fay, that 
this readerfliip is an ecclefiaftical preferment. A reader, 
in the canon law, is always put in oppofition to a clergy- 
man. It means a perfon who reads prayers in the morn- 
ing, and afternoon, on week days. It is an order in the 
Romiß Church, inferior to a deacon. So it is called by 
Burn (/), and I am informed, that, in the Welfi and Cbtßef 
diocefes, there are laymen who officiate as readers at this 
t 147 ] day. The inftitution of the office in this parifli has been 
looked into, and it feems that it exifted before 1706* 
There are fome entries in the parifli books which require 
particular duties to be performed by the reader, as affilting 
in adminiftering the facranient, affifting the clerk, isfe. 
When a certain appropriated fund ceafed, from which the 
falary Was payable, the veftry ordered 30 /. a year to be 
paid out of what they call commiffion moneyy and afterwards 
to be charged by the churchwardens in their accounts. 
Now, what ftability is there in this ? The reclor may re- 
fufe the reader the ufe of the church to read in. The pa-* 
rifh may no longer choofe to have prayers read on week 
days, and may difcontinue the falary. We are, therefore^ 
of opinion, that this is not an eccleßaßical preferment^ withia 
the meaning of the undertaking given to the biOiop. 

The rule for a new trial was accordingly difcharged, and 
judgment entered up for the plaintiiF [f 52]. 
• The queftion now, upon the cafe refervcd in 'the prefent 
a£lion, was. Whether the plaintiff could recover the arrears 
. of his falary of 50 guineas, from the time of the defend« 
ant's quitting the redory of &. Ann f 

(/) EccL Law, title Ordinatstn. [f 52] That part of this cafe has 

been reported fince« Cowf. 437« 



Coivper argued for the plaintiff*. — Davenport for the 1 7 TO* 
defendant. ^ y 

For the plaintiff, it was contended, that tlie undertaking Martyn 
by Hind did not determine by his ceafing to be recior of a^ainll 
St. Ann, It was a permanent agreement to provide for the Hind. 
plaintiff till he ihould obtain fome other church preferment* 
It could not be avoided by the voluntary a£l of the defend- 
ant, but, if he had put it out of his own pov/cr to conti- 
nue Martyn in the exercife of the fundions of curate of 
St. jinny he was flill bound to pay him the falary. Tlic 
nature of a title to the biihop is not a precarious provifion, 
dependent on the will of the perfon who gives it, but cer- 
tain, and only determinable by the mifconducl, or prefer- 
ment, of the perfon to whom it is given. To prove this, 
feveral cafes were referred to in the regifter of archbifliop 
Winchelfeay which are mentioned in Gibfin^s Cochxy in the 
commehtaty on the 33d canon of 1603 (w), and particu- 
larly, — the following entry in that rcgillcr ; " An order 
** from the archbifhop to the bifhop of St. Afapk to compel 
'^ ^0/^// reftor of Gcldßeld to pay the annual fum of five 
*' merks fterling to Annanus de Gohl/leldy to whom the faid 
" John had given a title for that fum, until he Ihould be 
^* provided for. Given at Stepney ^ Kal. Apr. 1303." — [ 148 "J. 
And two orders from the archbifhop ; one, to a bilhop, to 
provide for a clergyman whom he had ordained without a 
title i and another, of the like purport, to a billiop's exe- 
cutors, to oblige them to provide for one who had been 
ordained without a title. 

For the defendant, it was infilled, that every fcntence in 
the inftrument confined the undertaking to the time of 
Hind's continuance in the rcftory of St, Ann* It could 
not bind his fucceilbr, and certainly did not bind him to 
continue all his lifetime re£lor of that parifh. Tlie confi- 
derition for which the 50 guineas were to be paid was the 
performance of the duty of curate* The contraft would 
want mutuality if it extended beyond Kind's continuance 
in the rectory of St. Ann^ for he could not compel the 
plaintifF to officiate as his curate at RochdcJey his prcfcnt 
living. An engagement to pay 50 guineas, independent of 
any clerical funftions, would not have been a title upon 
which the bilhop could have ordained the plaintiff. 

Coivper^ in reply, obferved, that the plaintiff was pre- 
vented from performing his part of the contradl, by the 
afl: of the defendant. 

Lord Mansfield, — ^There does not fecm to me to he 
any colour whatever for the prefent demand. The quef- 
tion is, what Hind has undertaken to do. He could not 
turn the plaintiff out at pleafure, but there is no pretence 


(w) Gi^/. 'vol. L tit. 6. c. 3. 
Vol. I. L 


1 770, to fay that he has undertaken for himfelf, or his exccutorSf 
1^ - _ I to maintain him for life, or to continue all his own life- 
JVIartyn time reftor of St. Ann* The queflion here is not, whether 
againil this is a good title or not ; although it (hould feem that if - 
HsND. is good. They commonly run in this form, and the cu- 
rate takes the rifquc of the redlor's quitting the Hying. A, 
man may give a more permanent title, but the words of 
this inftrument clearly confilie the undertaking to the timrf 
of Hindis continuing reöor of St. Afin, ^< I nominate^ 
" feV." " to the ofiice of a curate of my pariß of St^ 
« Ann;' t^c. 

-^^he Pojlea to be delivered to the defendant. 

r 149 ] ^^^^ King againß the Mayor and BuRGESSEa 
of Lyme Regis, on the profecution of 
Francis Fane; — and the Same againß 
the Same, on the profecution of John 

Saturday, rr^HE writs, in thefe cafes, w'erc cxaflly the fame at 

iftMay. 1 in that of ^//Vr/^^// («). 

In a return to The return, in the cafe of Francis Faney fct forth ^ 

a mandamus r^^^^ j^ ^ • ^^^ ^ borongh bv prcfcription. That 

to rc(torc, if it . t^t j n rr i.x. \i.ju 

is ftaicci— thai ^"^ Mayor and ßurgcücs, (the corporate name,.) had been 

the party was immerfioriaUy accuitomed to have a gu'ild-houfe, called 

removed fy the the Moot-hall^ or Gulld-kilL That, from time whereof^ 

iorf^ateb^ l^^^ ^ili ^^ graming the letters patent therein after men- 

«miiefefrary 'to ^^^ncd, and alfo ever fince, there had been, and dill was^ 

snnr that the a council of the mayor and borgefles, confifting of the 

powei of re- mayor and certain other perfonsy who, immemorially, 

inovaJ is vetted ^j^^jj ^^ granting the letters patent, were called amnfellorsy 

caufeit'is/W- ^^^> from the time of the granting the letters patent, tä- 

</<rn/a/toihem, pital burgeJfeSy and that immemorially, till the letters pa-» 

«nlef» given tent, the council confided of eleven burgefles, inhabiting 

by charter, ^nd refiding within the borough or the liberties thereof, 

to ^a Idea ' ^^ whom the mayor was one. That^ till the letters pa^ 

part.— An ac- ^^T^U every counsellor, on his admiffion into that office» 

Cion will lie for took an oath for the due execution thereof; and, from 

'<A jufprtjfm V«. ^e time of the granting the letters patent, hitherto, every 

aswcll^rjor ^^P^^^^ burgefs, upon his admiffion into that office, had 

an aikgatio taken an oath for the due execution thereof; which oath» 

/«^.^When fo refpcöively taken, was ftated in hsec verba in the return» 

flon-i-efidencc the material part being as follows : " You (hall fwear» 

iemovh^a^""' " ^^^^ Y^" '^^^ ^^ obedient to the mayor and- hU fuc- 

corporator, it ** ccffors, when, and as often> as the mayor fhall have 

is unneceffhry •• OCCafioXt 

tofummonhim / \ c ^ r/ - /> 

previoufly to W %''«' ^* »9 ^- 5^ P- ??• 

come and le- 7 


^* occafion to fend for you, cither for the affairs of the I770, 

<* town, or elfe for to be aiding and aflifting of him in ^ ^ 

** the court, upon the pleading or hearing of any matter The Kino 

** or caufe depending before him, or for or concerning againft 

** any other caufe for the which the faid mayor fliall, or Lyme 

" may, in refpeft of the office of the mayoralty, have Regis, 

•* occafion to hear, or ufe your opinion or counfel. His 

** counfel and his brethrens' you fhall obferve and keep^ 

** of and concerning all matters that (hall be communed 

*• of in the council Jhoufty or elfewhere, for the affairs of 

** the common-wealth of this town, and f^all not difclofe, P t Co 1 

<* difcover, or report abroad, what fhall be treated of in 

<* the faid council-houfe, or any particular man's opinion 

<* there delivered, touching any thing that fhall there be 

** treated, or communed of, touching any the affairs of 

*^ the faid town." That, till the letters patent, every 

counfellor, and fince, every capital burgefs, was accuflomed 

to refide and inhabit, and of right ought to have refided 

and inhabited, within the borough, or the liberties thereof, 

to advife and aflifl the mayor, touching the flate, good 

rule, and government of the borough, and the adminillra- 

tion of juftice within the fame. That Queen Elizabeth ^ 

by letters patent of the 26th of June^ in the 33d year of 

her reign, did, [inter alia flated in the return,) grant ([7], 

That there fhould be for ever in the borough, a mayor, 

and eleven other burgefTes in number only, out of the 

burgeffes of the borough or town aforefaid, to be chofen 

and conflituted according to the form in the faid letters 

Eatent thereunder fpecified, who fhould be called capital 
urgeffes ; (then nominating as ufual in charters, the firfl 
mayor and eleven capital burgeffes.) The capital burgefTes 
to continue for life, unlefs, in the mean time, for their 
own bad government in that behalf they fhould be re- 
moved. That the faid mayor, and eleven burgefTes there- 
by appointed by name, or the greater part of them, the 
mayor for the time being one, whenever to them, or the 
greater part of them, it fhould feem fit, in their found 
prudence and difcretions, fhould choofe, not exceeding 
the number of four other perfons of the inhabitants of the 
borough or town, to be other capital burgefles, fo that the 
other capital burgefles, fo to be chofen, together with the 
mayor, and the other eleven capital burgefles, fhould not 
exceed the number oifixteen^ to be continued in the ofEce 
for their lives, unlefs, tJ'r. That, as often as the capital 
burgefTes, fo nominated, or thereafter to be chofen, (/. e. 
the eleven and four,) or any of them, fhould die, or be 
removed fqr, Ö*r. then it fhould be lawful to the other capi-^ 
tal burgeffes f being the common council^ or the greater part of 


[7] Vide the following page. Note [7]. 
L 2 


I77Q- ^^c"^> *o choofe one or more of the other burgcfles, in th«f 
1^ - - f place or places of fuch capital burgefs or burgefles fa 
7'hc King nappening to die, or to be removed j and that he or they 
again ft fo chofen fhould be a capital burgefs, or capital burgefles, 
Lyme in like manner as the capital burgefles, by the letters patent 
Reo Iff/ before conftituted, \vere and fhould be. That, whenever 
a vacancy or vacancies fhould happen, by the death or 
r i^i n removal of any of the faid capital burgefles, another or 
others of the burgefTes fhould be eleöed a capital burgefs, 
or capital burgefles, by the reß of the council^ or the greater 
part of them, in the place of fuch capital burgefles fa 
happening to ^le or to be removed. That the capita! 
burgefles, fo from time to time to be chofen, fhould take 
their oaths before the mayor and the refl of the capital 
burgefles, or the greater part of them, well and faithfully 
to execute their oflSce* That by the faid letters patent^ 
the queen granted to the mayor, and capital burgefTesy 
and their fucceflbrs, that it fhould be • lawful for them to 
keep or appoint a guild or council houfe, within the bo- 
rough or town, commonly called the Moot-hallj and that 
the faid mayor and capital hurgejfts^ the common council of the 
borough or town aforefaid^ or tiie greater part oF them for 
the time being, as often as to them it fhould feem ne- 
cefTary, fliould and might convoke, and hold, in the faid 
houfe, a certain convocation of the fame mayor and ca- 
pital burgefles, or the greater part of them, and in the 
lame convocation, fhould and might treat, fjff. of the 
ilatutes, afts, articles, and ordinances, touching the bo- 
rough or town, and the good rule, flate and government 
thereof, according to the tenor of the faid letters patent, 
as by the faid letters patent, remaining on record, might 
more fully appear [7].) That the mayor and burgefles 
accepted the letters patent, in the feveral matters in the 
return fpecified, and from that time, had afted under, 
and conformed thereto *, and thaty ever f nice ^ the coumil had 
confißedy and of right ought to confifl^ of the mayor and the 
capital lurgejfes of the borough for the time being *. That 
Fane^ on the 29th oi Augußy 1774, was eleöed a capital 
burgefs, and afterwards, on the fame day, took the oath 
above fpecified. That he had noty at any time ßnce his 
ehEliony inhabited or reftded nvithin the borough y or the liberties 
thereof buty dn the contrary y hady ever ftnccy inhabited and 
refided ivilh his family y in places out of and at a great diflance 
from the faid borough y and the liberties thereof and had, 
during all that time, voluntarily y without gcfod occq/ion, ab- 


[7] There v/as the fame recital • This fentence, (printed between 

with that included in this parenthefis two afterilks,) was not in the return im 

in the return to the mandamus to rcflorc the cafe ^Arthur Raymond. 
Arthur Raymond t in/rat 1 77. 



fented himfelf from the borough, and from the duty of 1 770, 
the office of a capital burgefs ; and that by his non-refi- 1 _ _ ^ 
dcnce, and his voluntary abfence.from the borough, and The Kino 
the duty of his office, he did, during all the time of his agaioft 
being a capital burgefs, wilfully negleä:* and omit the duty Lyme 
and execution of his office, and deprive the mayor and Recm, 
burgeflcs of that counfel, and affiftance, and advice, which [ ^ S ^ J 
by the duty of his office, and according to the faid oath, 
he ought to have given. That, at a meeting or convoca^ 
tion of the mayor and burgefles, he/dy according to the im^ 
memorial ciiftom and ufage of the borough^ at the Moot-hall^ 
or Gui/d'hal/y on the 31ft of Augußy 1778, Joh/t Coade, ^ 
one of the capital burgefles, exhibited certain articles of 
icomplaint, ^c. againft Faney (In the fame form, and with 
the fame omiffiou, but which was now taken as amended« 
as in the return 'to the mandamus of the Hon. Henry Fane 
{a)y except that here the only charge was non-reftdence and 
fonfequent negleSi of dutyy and the conviftion was ftated to 
Jbe only on the fourth article of the complaint.) That a 
copy of the articles, and a fummons to appear at the next 
meeting or convocation of the mayor and burgeflcs, thea 
appointed to be held at the Guild-hall y on the 14th of 
September next, and anfwer the faid articles, and (hew 
caufe why he fhould not be removed and difplaced, were 
prdered to be, and aften^'ards, on the 31ft of Augußy 1778, 
were ferved on Fane. That, in purfuance of an order 
made at the faid meeting or convocation, held on the 31ft 
oi Augußy 1778, all the burgefles of the borough, within 
the reach of fummons, were, afterwards, and before the 
holding of the next meeting, duly fumm©ned, to appear 
at the faid next meeting or convocation, to treat, advife, 
fronfult, and determine, touching the removal and dif- 
charging of Fane from the office of a capital burgefs, for 
the caufes and mifdemeanors mentioned and contained in 
the faid articles. That, on the 14th of Sept ember y a meet- 
ing of the mayor and burgeflTes was, according to the faid 
laft-mentioned fummons and notice, held, at the Guild-hall 
aforefaid, for the purpofe aforefaid, amongft other bufi- 
nefs, and that Fane appeared. That, by his confent, the 
meeting was adjourned to the next day^. That, on the 
next day, a meeting or convocation of the mayor and bur- 
gefles aforefaid was, according to and in purfuance of the 
faid adjournment, held at the Guild-hall. That Fane alfo 
appeared at the adjourned meeting, and it was there ad- 
judged, that he was guilty of the Tion-re(ider>ce, abfcnces, 
contempts, ncglefts, breaches of duty, niifl)efcaviour, and 
other mifdemeanors, and things, objefted and charged 
3gainft him, in and by the fourth of the faid arti rl';<? of 


(«) Zufra^ p.. 135, 


J 53 


1770» complaint. That he had not fhcwn any juft caufe why 

■ _ _ I he fhould hot be removed from his office. That the 

The King mayor and the reft of ;^e burgeifcs holding the meeting, 

again ft had refolved, that, for the non^rejidence^ ab fences, tjfr, 

Lyme; whereof he had been adjudged guilty, he ought to be re- 

Kegi&. moved, and did then and there remove him. That he 

had not afterwards been eledted, admitted, fworn in, or 

reftored ; and that, for thefe reafons, they could not re- 

ftore him, or caufe him to be reftored. 

In the cafe of Luther ^ the return was, in every material 
part, exaftly like that in the cafe of Fane. The validity 
of the return in the cafe of Luther^ was argued before 
that in the cafe of Fane^ (Lord Mansfield being, I be- 
lieve, abfent,) by Rooh and Laivrence {o) \ but I was not 
in court. Afterwards the cafe of Fane was argued by 
the fame gentlemen, on this day. 

RooKE, againft the fufficiency of the return, — I ftiall 
make three objeöions to this return, i. Becaufe it does 
not ftate that the meeting which disfranchised Fane^ was 
held by any right or cuftom, 2. It does not aver that the 
corporation at large had an authority to disfranchife. 3. 
It does not ftate that they had a right to disfranchife for 
the reafons for which they have removed the profecutor. — 
|. It is not ftated that the meeting, when the disfranchife*. 
ment was pronounced, was held by cuftom or charter ; 
and one, or the other, is neceftary to warrant a mayor 
in calling a corporate aflembly. In the cafe of the King v, 
Richard/on (/>), a cuftom to hold the meeting was alledged 
in the plea to the qieo ivarranto^ although pleas do not 
require fo great certainty as returns, Unlefs it can be 
ftated as general law, that a mayor can call corporate 
ailemblies at his pleafure, this meeting was not leg<il.— 2, 
The right in the corporation at large to disfranchife their 
members, is not averred. The return may be all true, 
and yet the profecutor may have been unjuftly removed. 
This deprives him of any remedy, by traverfe, or aftion, 
The fame ftridtnefs is required, and the fame principle^ 
govern in returns to writs of mandamus^ as in indictments, 
or returns to writs of habeas corpus ; Rex v. Hutch'wfon 
Mayor of CarliJJe {q)^ where it is faid on the margin (r), 
that returns to ptandamtifes require even greater certainty 
than indiöments, becaufe they cannot be traverfed, (that 
is, at common law.) Now, in the cafe of indictments, they 
arc bad wherever all the fafts ftated may be true, and yet 
^e party innocent ; 2 Hawk, PI, Cr. r. 25. § 57. & § 1 19. 
123. 126. where it is laid down, that the caption of an 
indictment muft flicw, that (he indiöment was taken ber 


(fl) OnSatur/^^, z^h Jpril^ ((f) M. 9 Geo. I. 8 Mod. 99, 

If) £f 31 G, J, 1 ßurr. 517, (r) liiä. 101% 


fore a competent juTifdiftiort, and that the jurors had I770. 
authority to find it. In returns to writs of habeas corpus^ : , _ , j 
an exprefs and certain caufe of commitment muft be fet TheKiKO 
forth, for the court will intend every thing againft the again ft 
perfon making the return; Deyton^s Cafe {r)^ and i Zalk, Lyme 
250. 5 Mod. 83- But it will be faid, that a power of Kecis* 
amotion i& incident to every corporation, and therefore it 
need not be dated* What is meant by incident? If it 
means, that it neceßarily belongs to the corporation at large, 
I deny it. In l.ord CokS% time, it was held, that a corpo- 
ration had not the power of amotion, unlefsby cuftom or 
charter. However, that dod^rine has been over-ruled 
fince, in Lord Bruces Caß (j), and in the King v. Richard'* 
fon (/), and I admit that corporations have a power to 
disfranchise. But cuftom, charters, or bye-laws, may re- 
ftrain that power to a part. If they are filent, it is vefted 
in the whole body. The queftion, therefore, comes to be» 
how far it is neceffary to ftatc legal prefumptions. They 
only (land, till the contrary is proved. If it is competent 
to encounter fuch legal prefumptions, a return ought to 
^ ftate Something which will enable the oppofite party to 
contradift what the general prefumption would eftablifh. 
But, on this record, it is impoflible for us to deny thq 
right in the body at large. It ought to have been ex- 
prefsly alleged. In indiöments for not repairing high- 
ways or bridges, although the inhabitants at large are 
bound, at common law, to repair, yet it is always charged 
that they are liable, to let in a plea that they are not, but 
that particular perfons are. — (Buller, Jußice^ — " You 
<* cannot traverfe that averment in the indiftment.") — 
This cafe muft be confidered as independent gf the ftatute 
pf Queen Anne (//), for that aä was intended folely for 
the benefit of perfons fuing out writs of mandamus^ and 
not to take away the ftri^lnefs which the common law re- 
quired in returns -, Rex, v. Mayor of Lynn (v), and 2 Burr. 
733. 741 J and the certainty neceffary at common law 
is cftabliöied by Bo^s Cafe (w), in Rex v. Clapham (y), 
and in Rex v. ALiyor cf Abingdon (s). As to precedents, 
there is not one which does not aver a right to disfran- 
chife, except that in Bagg's Cafey and it has never been 
faid that the return in that cafe could be fupported. No 
inconvenience can arifc from oblighig the party to put 
this right on the record, whereas there will be great in- 
convenience the other way, as it will enable a mayor to 
throw the whole corporation into confufion, without any 


(r) Moere 840, {*v) H. il G. 2. Judr, loj. 

is) M. t Geo. 2. 2 $(r. 819. (iv) T. 13 Jac. i. II Co. 93. B. 

t) I Burr. 539. ly) H, 22S z^Car. 2. iFentr.iii. 

(«) 9 Jtni. c, ^o, («) £. 12 ff^. 3* 2 SaU. 432. 



I'^7Q. danger to himfelf.— 3. Suppofing the power of amotion to 
t :_ _ _j be in the corporation at large, they have not (hewn a right to 
The King disfranchife for the caufe for which this profccutor has 
again ft been removed. They do not ftate that they ever gave 
Lyme him notice to come in and tefide. They only fay, that 
R^cis. he was non-refident, at and fmcc the time of his election, 
but no inftance of any particular abfence is, fpccified. 
On this point, I muft rely on the principles laid down by 
your Lordfliip, in the cafes of Rex v. Richardfou {a)y and 
Rex V. The Mayor of Liverpool {b). It is charged, generally, 
that Fane ivilftdly abfented himfelf, but no particular in- 
ftance of difcbedience to any fummpns to attend is fet 
out, which ought to have been done, according to the 
do£lrine in Rtx v, The Mayor of Doncafer (r), and in The 
City of Exeter v. Glyde [d)* 

Lawrencey for the defendants, — i. If the corporation 
had a power to amove, and yet could not afl'emble for 
that purpofe, that power would be nugatory, In the 
cafe of The King v. Rirhardfony the ground of amotion 
was non-attendance at corporate meetings, and, therefore, 
it was necefl'ary to flate the right to hold thofc meetings.— 
2. In all the former cafes, they have founded the right 
on charter or cuftom. This is the firft in which the 
power to remove as incident to the corporation at large 
has been relied upon, and, therefore, it is not to be 
judged of ftri£tly by former precedents. But that fuch 
a power is, at common law, incidental to every corpora- 
tion, is clearly cftabliftied by Lord Brucc's Cafc^ and by 
that of The King v. Richardfon^ Every common-law right 
will be taken notice of by the court. The bufinefs of 
pleading is to fct forth the fafts, not to draw inferences 
of law. Certainty to a common intent is all that is re- 
quired in returns, and that not as has been argued, to 
enable the other party to bring an aftion for a falfe re-. 
turn, but for the information of the court, as was held 
in Rex v. The Mayor of Alitigdon {e). This is refembled 
to cafes of inditlments and returns to writs of habeas cor-- 
pus. But, as to indictments, tlie record muft ftiew, be-, 
fore whom they were found, and by what jury tried, be- 
caufe tliofe arc fads; but it is never fet forth, that the 
grand jury had power to find the indiöment, or that the 
jut'ge had authority to try it, becaufe thofe conclufions in 
r J56 ] ^^^ ^re made by the court. So, in returns to writs of 
habeas corpus^ if the power of commitment is at common 
law, it is never ftated in the return. Thus, in the cafe 
of Croßy Lord Mayor of London {f\ the power of the 


{fl) I Burr, 540. (./) r. 3 /r. Iff il/. 4ilW. 33. 

\^ö) li, 32 GVe. 2. 2 Burr, 73 1. [e) 1 Ld, Raym, 559, 5Ö0. 

(0 M, 3 Geo. 2. 2 Ld. Raym. (/) C. ^.£.11 Geo, 3. 3 JfUf. 

\l^\' 180. Since reported, 2 Black, 754. 


Speaker of the Houfe of Commons was not alleged. In 1 770, 
an indiftment againft a gaoler, for an efcape, there is no \ _ * • 
occafion to aver, that he was bound by the duty of his 'j he Kino 
office not to ftifFer his prifoner to efcape. So, in an in- againft. 
diclment for not performing ftatute-labour on the high-» Lym« 
ways, the authority of the overfeers to appoint the work Ä^<2i3t 
need not be alledged ; Rex v. Boyall {/). The reafon 
why, in an indiiäment for not repairing a road, it is dated, 
that the inhabitants ought to repair, is to give an opportu- 
nity of introducing the name or defcription of (he de- 
fendants, for the purpofe of (hewing who are the offend-» 
ers ; but, if that were done in any other way, it would 
be fufficient. It is not neceflary to follow the common 
form of words. Indiftments for perjury are the only 
inftances in which a legal authority is ufually fet forth. 
But that has only been the pradlice fince tlie ftatute of 
23 Geo, 2. {g). The precedents before that period, do 
not contain fuch an averment ; Co. Ent. 363, 368. Tre^ 
tnayne 136. 144. 147, 157. It is faid, that whatever 
was nece/Tary to be ftated before the ftatute of Queea 
Atme^ is ftiJl neceflary. This I admit. But then all the 
precedents of returns before that ftatute, were alfo prior 
to Lord Bruce^s Cafe, when the general power of corpora- 
tions at large was firft fettled, and till then, it was thought 
neceflary to ftate the power, it not being confidered as 
incidental. It is faid, the fa£ls here alledged may be all 
true, and yet the party unjuftly removed, and that he will 
have no remedy. But, if the corporation have not the 
power of amotion, he ftill remains a capital burgefs. If 
the right were not in the corporation at large, he might 
have fuggefted in his writ, that it was in a feleft part, 
^nd that he had been amoved by the whole body, and 
then the return muft have denied the right to be in the 
feleft part. As the fuggcftion of falfe fafts is a ground 
for an aäion, fo is the fuppreffion of true faäs. Thus, 
fuppofe there were two charters, one giving, (with other 
privileges,) a power of amotion to a feleft part of a cor- 
poration, anoUier of a later date, confirming the other as 
to every thing elfe, but reftoring the right of amotion to 
the body at large. If a mandamusy in fuch a cafe, were 
to ftate a removal by the fele£t part, and the return were [ 157 1 
to fet forth the old charter only, all the fafts in that 
return would be true, yet certainly an action on the cafe 
might be maintained for the deceit. — 3. A ftronger cafe 
of wilful abfence cannot be ftated, for the profecutor is 
alledged never to have refided fmce his eleftion. In 
^ichardfon\ cafe, thq offence was the non-attendance at 


(/) f. 32 y 33 QcQ. 2. 2 Bvrr. [g) Cap. 11. §1. Infra^ 134, 


1 77Q« particular courts, of which he might not have had notice $ 
\^ ^ - , _f and, therefore, it was neceffary to fet forth that due notice 
The King had been given. But I conceive that, by law, a capital 
«gaind burgefs is obliged to refide, and that, hi fifch cafe, non<« 
Lyme refidence, without any fummons to attend, is a forfeiture, 
Rbcis. In Lord Sin^v/burfs Cafe (A), it is held, that, where an 
office concerns the adminiftration of juftice, the officer i$ 
liable to forfeiture for non-attendance, or non-ufer, and 
that he is bound to attend without any demand or requeft. 
In G/yde^s Cafe (i), non-refidence is dated to be a forfeiture 
of the office of alderman. In Vaiighan v. Lew'u {h)^ Lord 
Holt fays, that a claufe in a particular charter, making 
non-refidence a forfeiture, was only declaratory of the 
common law, for that non-refidence was, by law, good 
caufe to remove a member of a corporation (/) [0- 1]. In 
the cafe of The King v. The Corporation of Wells. {tn\ a de- 
termined negleft, or wilful refufal, is held to be a ground 
of forfeiture \ and non-refidence is the moil glaring negleft 
of any ; and, in the cafe of- The ^teen v. Truebody («), it 
was exprefsly decided, that, if a capital burgefs quite leaves 
the borough, and goes and Yeßdes in another place, it is a 
fufficient ground for turning him out, and that there is no 
need of fummoning him before he is removed, becaufe he 
has abdicated the borough [(ö* 2]. But, if this return 
were bad, the court would not grant a peremptory manda^ 
miUy when it appears that the profecutor has deferted the 
corporation \ Rix v. The Mayor of Neivcaßle^ cited in Reit 
v. Richardfon (0). 

Lord Mansfield, — ^The only queftion is, Whethefj 
taking the law as clearly eftablifhed, that the power of 
amotion is incident to a corporation, this would have been 
^ fufficient return before the ftatute of Queen jfnne; for I 
take it to be fettled, that the fame certainty is required 
now, as before that ftatute, though I think at firft it might 
have been otherwife determined, becaufe the reafon vtras 
not the fame. The great objeftion made to this return is, 
that the defendants have not fet out, that the body at 
[ 158 ] large has the power. They have fet out the charter, and 
we muft take it to be as ftated, and there is no fpecial 
power thereby ^iven. either to* the whole body, or any fele£^ 


(h) 7*. 8 Jac, I, g Co. 50. in the nature of quo 'warranto will lie, 

(/) 4 Mod. 36. Vaughan v. Lrwis, and Rex v. Hea^$n% 

(k) jF. 4 ^. y M. Cartb. 227. M. 29 Geo. 3. 2 Term Ref. 772. 

(i) Ibid, 229. {m) H. 7 Geo. 3. 4 Burr. 1999. 

[t^ i] But non-refidence, though a {n) E. 5 Ann. 2. td. Raym. 1275. 

good caufe of removaljdocs not /^/ir^o, [t^ 2] Re:f v. M^or of Sbrenufiury, 

determine the office, but there muft be T. 8 Geo. 2. Cafes ftmp. Lord Hetrdn-v^ 

a judgment of amotion pronounced by 147. 1 5 1 . 

the corporation, before aw information . (0) i Burr. 530. 534. 


part. In fuch a cafe, the charter making them a corpora- j 770« 

tion, the law implies the right to remove to be in the whole 1 - j 

body. The charter leaves it to the rule of law. It is faid. The Kino 

there may be fome other charter or bye-law to the contrary. againft 

But is it neceflary to ftate every poffible negative, — as, that Lymb 

there is no other charter, — no bye-law, Iffc. ? I think it is Regis* 

not. If there were another charter or bye-law reftraining 

the power, and that were not fet out, can there be a doubt 

but an aftion would lie } That would be mifleading the 

court. Wherever there is a fuppreflion of truth, and the 

party is thereby injured, he may maintain an aftion. As 

to the caufe of removal, it is fet out in exprefs words, v/z. 

a. general non-refidence. But, if the corporation has the 

power to remove, they muft have power to hold a meeting 

for that purpofe, and that^ being incident to the other, 

need not be fet out. It is not true that you are to prefume 

every thmg againft a return. You are not to prefume for 

or againft it. 

WiLLES, and AsHHURST, Jufticesy of the fame opinion. 

BüLLER, Jußice^ — I will take the firft and third objec- 
tions together ; and, with regard to them, I think that ä 
general non-refidence being exprefsly ftated as the ground 
of amotion, it was not neceflary to give notice to come 
and refide ; for, if a member of a corporation ought, by 
his office, to refide, he is bound to know the law ; and, 
where there is a right to remove, there muft be a right to 
aflcmble for that purpofe. As to the great queftion. Whe- 
ther it was neceflary to ftate that the power of amotion 
was in the body at large ? it has been admitted, that it is, 
by law, incident to the whole body, if not reftrained, by 
an exprefs grant, to a feleö: part. It is alfo admitted, 
that, if it had been ftated, it would not have been necef- 
fary to prove it. But it is infifted, that this return may be 
true in every thing, and yet the party be entitled to be 
reftored, and that he has no opportunity of traverfing the 
right, or bringing an aöion for a falfe return. I agree 
that, in thefe returns, the fame certainty is required as in 
indidlmcnts, or returns to writs of habeas corpus. Lord 
Coke has diftinguiflied certainty in pleading into three forts 
' [0^] [t 533» '• Certainty to a common intent, which is 
fufiicient in a plea in bar ; 2. Certainty to a certain intent f ICO T 
in general, as in counts, replications, is^c, and fo in indift- 
ments-, 3. To a certain intent in every particular, which 
is neceflary in eftoppels. The fecond of thofe forts is all 
(hat is re^uifitc here, and I take it to mean, what, upon a 


EÖ*] Co. Litth 303. Ä. Juftice, in the cafe of Rex r. Home in 

t 53] For an explanation of the Dom. Proc, li May, 18 Ceo» j. Cow/% 

different forts of ceruinty, vide the 672, 68?« 
judgment delivered by De Qrej, Chief 


I Jig. fsii'' and rcafonablc confl:ru£lion, may be called ccrtaiir^ 
I — ^ without recurring to pojfihle fafts, \vhich do not appear. 

U'heKiNG Before the cafe$ of Lord Bruce and Richardjon^ it was 
»•lainll thought neceflarjr, to (late the power to be in the corpora- 
Lyme tion at large, bccaufe it was not then confidered as incident 
Regis, ^o them. It is one of the firft principles of pleading, that 
you have only occafion to (late fafts ; which muft be done, 
for the purpofe of informing the court, whofe duty it is to 
declare the law arifing upon thofe facts, and to apprize the 
oppofite party of what is meant to be proved, in order to 
give him an opportunity to anfwcr or traverfe it. It is now- 
fettled to be matter of law, that, prima fac'ie^ the power of 
amotion is in the body at large. Being matter of law, it 
is not traverfable- But the prefent profecutor may now 
reply^ that the power is not according to the general law in 
this cafe, but in a fclcft body, which may then be tried by 
a jury. If the return be certain on the face of it, that is 
fuflicient, and the court cannot intend fafts inconfiftent 
with it, for the purpofe of making it bad. We muft con- 
lider the chartet as truly ftated, becaufe nothing appears to 
contradict it; and, if fo, the law fays, that, by fuch a 
charter, the corporation at large have the power of amo- 
tion. If prcfumptions were to be allowed, certainty in 
every particular would be ncceflary, and no man could 
draw a valid and fuflicient return. If the power of amo- 
tion is, in this place, in a feleft part, and the prefent re- 
turn is bad on that account, I am clear that an action will 
lie. I fay, if it is bad on that account, becaufe it does not 
neceffarily follow that it is bad. ^Fhe contrary was held in 
Braith waited Cafe (/), which was recognized to be law by 
this court not many years ago, in a cafe from the borough 
of Le'tceßer. Braithwaite's Cafe alfo proves, I. That, aU 
though a return be true in words, yet, if it is falfe in fub- 
ftance, an aäion will lie, and, 2. That prefumption and 
intendment, as far as they go, muft be in favour of re-i 
turns, not againft them. If, in this borough, the power 
is given to a fele£t part, by the charter or otherwife, the 
court is impofed upon, jinA the profecutor injured ; and it 
would be a very proper fubje6t for an a6tiou. 
j_ 160 ] The court pronounced judgment in favour of the return, 

both in the cafe of Francis FanCy and in that of Luther ; 
but, upon the fuggeftion of the ScHcitor General y that ano-r 
ther ohjeöion, which was afterwards argued in the cafe of 
Arthur Raymondj applied alfo to thefe two, (as well as to 
fcvGral others,) they were all left open to the opinion of 
the court upon that objedtion (q). 

(/) E. 21 Car. 2. 1 rentr. 19. (^) Infra, p. 182. Note ig. 


Alsop and Another againß Price. satu7d a -' i" / 

'TT HIS was a fpecial cafe refcrved for the opinion of the on a Rcnenal 
-■- court. — ^The aftion, which was debt upon a bond, pica ot bank- 
was tried before Buller, Jußicey at Guildhall^ at the Sit- «""I'^cy uikIlt 
tings after Hilary Terniy 19 Geo, 3. t^h^''*/J/^r,#^°' 

The declaration ftated, That the defendant, on the 1 7th may^gi'vc :he 
of Jutu 1772, by his writing obligatofy, acknowledged condition of 
himfelf to be bound unto William Nafl)y in his lifetime, by the bond on 
the defcription of the Lord Mayor of the city of Londoiiy JT'"^!* I^^ "^^^ 
Sir Robert Ladbroke^ in his lifetime, and Robert Alfopy Efqj -^ ewden<e to 
(one of the plaintiffs,) by the defcription of the two fenior (hew that he 
Aldermen of the faid city. Sir Janies Eyre^ Knight, the »s not bHrre-rl 
other plaintiff, by the defcription of the Recorder of the |]y^^»cceni. 
faid city, Sir Stepken Theodore Jatiffen^ Bart, in his lifetime, bond by a 
by the defcription of the Chamberlain of the faid city, in principal and 
200/. to be paid to the faid obligees, when the defendant ^'»lety has not 
fliould be thereunto rcqueftcd, an<l that, though often re- ^^ r'"'!^*^*f' 
queffed, he had not paid the fame, or any part thereof, to bankruptcy 
the faid obligees, or any of them, in the lifetime of NaJJjy of ihe luiety, 
JLadbrokey and Janjfeny nor to the plaintiffs, or cither of the debt can- 
them, fince the death of the faid Naßy Ladbrohey and JJ^ji^^^^ ^'^'''^ 
Janjfen, — ^To this declaration the defendant pleaded^ gene- commiflion 
rally, that, after making the bond, and before the acUon and he may 
brought, he became a bankrupt, within tlie meaning of the l)c lued upon 
ftatutes made againft bankrupts, or one of them, and that j|' ^^f***" y^ 
the caufe of aÖion accrued before the time when he fo be- j^[^ ^ci dlk!ac« 
came a bankrupt; and concluded to. the country. 

The cafe ftated. That a commiffion of bankruptcy iffued 
againft the defendant on the 5th of September 1776, and 
that he afterwards obtained his certificate, which was al- 
lowed by the Chancellor on the ift of Alay 1 777. It then 
fet forth the bond on which the adion was brought, and 
the condition. The bond appeared to be a joint and fcveral C^^^^ ] 
bond by jfames Sagey Thomas Lawrcncey the defendant 
PricCy and Benjamin Ivory, The condition recited, i. That 
Samuel Wilfony late of Hatton Gardeny in the county of 
Middle/ex y Efq; deceafed, by his lall will and tcilanicnt, 
bearing date the 27th of OcJober 1776, dircfted that his ex- 
ecutors fliould pay the fum of 2c,coo /. if the rcfidue of 
his eftate fliould amount to that fum, or, if not, the 
amount of fuch rcfidue, to the Chimiberlain of Lo^dsny 
for the time being, to whom, together with the Lord 
Mayor, the two fenior Aldermen, and the Recorder, for 
the time being, he committed the management thereof, for 
the ufe and intent, that the faid 20,000 A or tlic amount of 
fuch rcfidue, fliould be a perpetual fur.d, to be lent to 
young men who have fct up one year, or not more than 
two; in fomc trade or maiiufaftur'.*, in the city of Litid-jny 



1 770. or within three miles thereof, and who could give fatisfac- 
I - - I tory fccurity for the repayment of the money fo to be lent 
Alsop to them j and his will was, that no more than 300/. noi* 
•gainll lefs than 100/. ihould be lent to any perfon or perfons in 
Price. copartncrfliip, nor for any longer term than five years, and 
that c\'cry perfon, to whom any of the faid money ihould 
be fo lent, (hould, for the firft year, pay i per cent, and, 
for the remainder of the time while he fliould keep the 
principal, 2 per cent, per annum ; and that the borrower* 
Ihould pay the intereft half-yearly to the faid Chamberlain 
of Lvndony under certain limitations and reftriftions therein 
particularly mentioned. 2. That Brafs Cro/by^ Efq-, the 
late Lord Mayor, Sir Robert Ladbrohe^ Knight, and Robert 
Jilfopj Efq-, the late and then two fenior Aldermen, James 
£yre, Efq; the late and then Recorder, and Sir Stephen 
Theodore Janjen, Bart, the late and then Chamberlain, 
having accepted of the trufts fo repofed in them, the exe- 
cutors had, fome time before, paid to the faid Sir Stephen 
Theodore Janjen, out of the aflcts of the teftator, then come 
to their hands, 10,000/. in part of the 20,000/. which 
fum of 10,000/. had fince been applied and difpofed of 
according to the ufes and dircdions in the faid will. 

3. That the executors had paid, out of aifets of the tefta- 
tor, fince come to their hands, the further fum of 10,000/. 

4. That the faid James Sage Thomas Lawrence^ (the bor- 
rower, and firft obligee in the bond,) who had been fet up 
fifteen months in the trade of a watch-cafe maker, in the 
parifti of St. JoJmj Clerhcnwelly in the county of M'tddlefexj 
had applied to the truftees, for the loan of 100/. part of 
the remainder of die «faid truft-money, for the time, and 

[ i52 ] upon the terms, in the faid will mentioned. 5. That the 
truftees, being fatisfied, from the beft information they 
could obtain, that the faid James Sage Thomas Lawrence 
was, according to the direftions and meaning of the will, 
a proper and dcfei*ving perfon to have the benefit of part of 
• the faid tnift-money, had, that day, advanced and lent 
him 1 00 /. part thereof, for the term of five years, if he 
(hould fo long live, on tlie terms and conditions in the faid 
will recited, and therein after limited and appointed. The 
condition then declared, that the bond (hould be void, if, 
I. the faid Jam£S Sage Thomas LawrencCy his executors 
and adminiftrators, (hould pay the intereft, (in the man- 
ner above mentioned •,) and if, 2. the faid James Sage 
Thomas Lawrencey his executors or adminiftrators, (hould, 
within twenty days after the expiration of five years, 
in cafe he ftiould fo long live and enjoy the benefit of 
the loan, repay, or caufe to be repaid, to the Cham- 
berlain of the city for the time being, on account of 
the truft, the faid principal fum of 100/.; and if, 3. 
(in cafe the faid James Sage Thomas Lawrence (hould die 
before the expiration of the five years,) his executors or 



adminiftf ators Ihould, within three months after his death, j jjq^ 
tepay the principal in like manner^ together with all in- ^ . _/ 

tereft that fhould be then due ; and if, 4. (in cafe the faid Alsop 
James Sage Thomas Lawrence, or both or either of his fure- a^ainft 
tics, within the five years, or before the principal fliould P&ics. 
be repaid, fhould remove from their then prefent or future 
place of abode, or in cafe the faid Thomas Price (tlie de- 
fendant) or Benjamin Ivory, or either of them, fhould, 
within the time aforcfaid, die, or become bankrupt, or in- 
folvent, or compound with their creditors,) the faid James 
Sage Thomas Lawrence fhould, within a month after fuch, 
or any, or either of fuch removals, deaths, infolvencies, 
or competitions, give notice thereof, in writing, to the 
clerk of the truft for the time being, and alfo, if required 
fo to do, within one month after notice fhould be given to 
him for that purpofe, by the faid clerk for the time being, 
nominate one or two other good and fufficient furety or 
fureties, to be approved of by the truflees for the time 
being, in the room of him or them fo removing, dying, 
becoming bankrupt, or infolvent, or compounding his 
or their debts, and ihould alfo, with fuch new furety or 
fureties, enter into a new bond to the truflees for the time 
being, and fo toties quoties. 

This was all that was flated in the cafe ; but it was ad- 
mitted, at the trial, on the argument, that the bond had 
not been forfeited by the breach of any of the flipulations [ 163 J 
in the condition, till after the bankruptcy, viz, not tül the 
7tli of July 1777- 

Davenport, for the plaintifl^f — Morgan for the defend^ 
ant. — ^The cafe was argued on Friday the 3pth of j4priL 

Two queflions were made. i. Whether the plaintiflS 
could avail themfelves of the condition, as they had not 
put it upon the record ? 2. Whether, if they could, this 
was not fuch a debt before the forfeit ure^ as might have 
been proved under the commifTion ? Cowper, who was of 
counfel for the defendant at the trial, had objefted to the 
reading of the bond and condition by the plaintifft, and to 
their being inferted in the cafe, bccaufe the bond, as flated 
in the declaration, was admitted by the plea, and not put 
in iffue. Büller, Jujiice, on the argument, faid, that he 
had thought Cowper was right in his objeftion, but that he 
had permitted them to be ilated in the cafe, from defer- 
ence to the gentlemen, (the Solicitor General, Dunning^ 
and DavefiportyJ who were of counfel for the plaintiffs. 

Davenport, on the part of the plaintiffs, argued as fol- 
lows : — I. Wherever, by an a£l of parliament, a defendant 
is permitted to plead generally, and give the fpecial matter 
of his defence in evidence, the privilege is reciprocal, and the 
plaintiiT may alfo give all fpecial matters in evidence, which 
tend to fup£ort bid demand. Picas of bankruptcy, (fuch 


I77Q. ^^ ^^ prefent,) under the ftatutc of 5 Geo. 2. (r), always 
, _ _ ^ conclude to the country. This is the fettled form, which 
Alsop has been ufed ever fince the pafling of the adl ; and there 
againil is no example of fuch a pica being demurred to for not 
Pric£. concluding with a verification. This being the proper 
conclufion of the plea, it was impoflible for the plaintiffs 
to repfyy and fo put the condition on the record, and 
therefore the only method in which they could fhew the 
nature of the debt, and that the bond was not abfolute, 
was by producing it in evidence. In the cafe of Thornton 
V. Da/las {s) indeed he faid that he had, to a plea of bank- 
ruptcy which concluded to the country, replied the fpecial 
matter, in order to put the queftion in the caufe upon the 
record ; but that, if the replication had been demurred to, 
he muft have withdrawn it, and given the fpecial matter in 
evidence. Before the ftatute of 5 Geo, 2. the cafe was 
otherwife. The defendant then was obliged to fct forth, 
in his plea, the trading, the aft of bankruptcy, the peti- 
tioning creditors debt^ isfc. as was determined in the cafe 
C 164 2 ^f Tu//y V. Sparkes (/), and, to fuch a fpecial pica, it was 
in the plaintiff's power to reply the fpecial matter. Be- 
fides, in the cafes of bankruptcy, before the ftatute, the 
defendant, in an aftion on a bond, could not, (as he can- 
not ftill in any other inftance,) plead any matter whatever 
iu difcharge of the bond, without fetting forth the condi- 
tion. By this means, an opportunity was given to the 
plaintiff to avail hinifclf of the condition, and it can never 
have been the intention of the ftatute to deprive him of 
that advantage, which would be the cafe now, if he could 
not give, it in evidence. 2. As to the merits, this is nor, 
as againft the fureties, dcbittim in prafenti^ Jolvendum in 
futuro. It was not certain, at the time of the bankruptcy, 
that e\'er the defendant would be liable to the debt. It is 
not, therefore, a debt within the ftatute of 7 Geo, i. 
cap. 31. which only applies to cafes where the money is 
due at the time of the bankruptcy, although not payable 
till a future day. That ftatutc direfts a rebate of the in- 
tercft for the interval between the aöual payment of the 
dividend, and the time when the payment of the debt 
(hould have been made ; but what rebate of intcreft could 
have been made to the plaintiffs in the prefent cafe [8] ? 

Morgan^ for the defendant, infifted, i. That the plain- 
tiffs had undertaken to ftate their whole cafe in their decla- 
ration, and, if they had thought fit, they might there have 
fet forth the condition of the bond, but as they had not 
done fo, it ought to be confidcred as an abfolute Dond, for 


(r) f. 30. § 7. T^aym, IC46. 1 948. 2 Sir, 867. 

(j) Supra^ M. 19 Geo. 3. p. 46. [8] Tul/y v. Sparkes is alfo in point 

(/) B, R, M. z Geo. z, % Ld, for the plaintiff's on this fcQond hcafcl. 


fuch it appeared to be from the declaration. The plea ad- j 770, 
mitted the bond to be fuch as the plaintiffs, who ought to y _ ^ 
know their own title, had fet forth, and only aflerted, that Alsop 
the defendant had become a bankrupt fubfequent to the againft 
time when the caufe of aäion accrued. Nothing but Price. 
that fail was in ifluc> and therefore the condition ought 
not to have been read ; for it appeared, upon the plaintiffs* 
own fliewing, that the debt was due immediately on the 
execution of the bond, long before the time when the de- 
fendant had proved that he had become a bankrupt. 
2. That this was a debt which certainly would become due 
at a future day, and, therefore, within the fpirit of the 
ftatute of 7 Geo. i. That, in truth, the debt was con- 
traäed) and completed, at the time when the money was 
advanced. For this he cited Macarty v. Barrow (u) [0C>]. 
He alfo cited £x parte Cafivelly before Lord King (v). Ex [ i5^ ] 
parte Greennvay (w). Ex parte Groome (x), and Ex parte 
Michell (y)j before Lord Hardwicke^ and Swaine v. De 
MaUos (2), [9]. 

Davenporty in reply, infifted. That it was not incumbent 
on the plaintiffs to Itate the condition, in the declaration ; 
they might not know that the defendant had been a bank- 
rupt, nor, if they did, that he would avail himfelf of that 
defence. It would be a (ingular hardfliip if it were re- 
quired of them to forefee, and anfwer by anticipation, 
every poifible defence that might be fet up [10]. 

BuLLER, Jußice^ having alked, whether there was any 
inftance, which had come before die court, where the 
plaintiff had been permitted to fet forth the condition of a 


(jv) B. R. E. 6 Geo, 2. 2 Str. 949. bankrupt, cannot be proved under hit 

5 WiL 16. Supra, ip. 55. Note [f 23]. commiffion, and, of courfe, is not dif- 

[1^] Fide Brookes v. Llcyd. B.R.M. charged by his certificate. 

26 Geo. 3. I Term. Rep. 17. [10] In TuUy v. Sparkes the condi- 

{y) M. 1728. 2 P. IV. 497. tion was fet forth in the declaration, 

(w) 1740. 1 Atk. 113. and, in the cafe Ex parte Cafwell, 

(x) 1744> ihid. 115. Lord A!/>r^ is flated to have faid, '< The 

(jr) 175 1 , 1752, ibid, 1 20, 1 2 1 . " certificate will not bar, if the obligee 

(«) ST. 17G«». 2. atG«/A/W/before "is careful in declaring upon his 

Lee, Ch. Jullice. '* bond ; indeed if the party declared 

[9] The point ruled in the cafe of " upon the bond only he (hall be 

SivaJne v. De Mottos, was only, that " barred : Secus if he fets forth as well 

bonds payable at a future day are '' the condition, as the bond in the 

within the ftatute of 7 Geo. i . though " declaration, for then it muft appear 

not given for goods fold by traders. " that the caufe of adion did not ac- 

Thc four cafes in Chancery cited by " crue at the time of the obligor's 

Morgan, all go to eftablifh the point " becoming a bankrupt." 2 P. W, 

infifted on by the plaintiffs in this pre- 499. However this was only an obiter 

ient cafe, vix. that a debt which may opinion. 

perhaps never become due from the 

Vol. L M 




[ 166 2 


bond in his replicationi Davenport faid, it was done in tli5 
cafe of Webßer v. Bannifter {a)j [i i]. 

The Solicitor General mentioned a cafe of Pait'ifon v. 
Banks [i2], at the Aflizes at Carliße^ before Ashhurst, 
Jtifticey in which, he faid, the pleadings were fimilar to 
thofe in the prefent cafe 5 that, the certificate having been 
produced, and the bankruptcy appearing to having been 
long fubfequent to the date of the bond, he offered the con- 
dition in evidence ; that this was objedted to ; but that, 
after fome argument, the judge admitted it ; and that a 
cafe was afterwards dated for the opinion of this court, 
which was argued in //. 17 Geo. 3. but that this point was 
not referved [f 54]. 

The court took time to confider ; and, this day. Lord 
Mansfield delivered their opinion, as follows : 

Lord Mansfield, — We are all of opinion, that the 
plea given by the ftatute opens the whole merits of the 
queftion in evidence on both fides ; and, on the merits, we 
think that this was not a debt which could have been 
proved under the commiffion ; for the defendant was not 
originally the debtor. It was not a debt to be paid by him 
in fitturo^ at all events, but depended on the atls of the 
principal, v/z. whether he did or did not comply witli the 
ilipulations in tlie condition of the bond [Cj*]. 

T\\t poßea to be delivered to the plaintiffs [X 5SJ« 

{a) Infra, E. 20 Geo. 3. 5tli May 
I780, p. 393. 

[11] That cafe came on in court m 
M. 19 Geo. 3. but I have podponed 
the report of it toE, 20 Geo, 3. becaufe 
the lad proceedings in court were in 
that term. The plea was a difcharge 
under the infolvent debtors' aä> and it 
concluded with a 'verification. 

[12] The principal queftion made in 
that cafe was, whether bonds not grant- 
ed for the price of goods, are within 
the ftatute of 7 Geo. 1 . c. 31.; when 
the court decided that they are. Sivaine 
v.De Mattos was cited , autcy n . 9 . and , be- 
ing faid by Chambre, (for the plainciff,) 
to be only a f^iß Prius cafe, if^cct/, (for 
the defendanti) anfwered, that it had 
been recognized to be law, by the 
court of C. B. in Goddard v. V ander- 
heyden,M. 12 G. 3. 3 Ullf. 262. 27 1. 
IVood endeavoured to argue the fame 
point, which was the firft in the pre- 
fent cafe, in arguing Pattifon v. Banks, 
but the court would not pernik liim, 
as it had not been referved. 

[t 54] Pattifon v. Banks has been 
fince reported, Co^ivp. 540. 

[C?] Fide Paul V. Jones, B. R. H. 
zi Geo. 3. I I'erm Rep. 599. S. P, 

[t 55] The following cafes have 
been fince determined. 

Heskuysok v. Woodbridgb and 
another. B. R. M. 24 Geo. 3, 

The fa£ts of this cafe came before 
the court in a fpecial verdid, and were 
thefe : On the 13th of June 1782. the 
defendants applied to the plaintiff, to 
accept a bill for 300/. which they 
would draw upon him, and which he 
did, not having any cffeds of theirs in 
his hands. I'he bill being indor fed 
over by tlie defendants, and becoming 
due on the i6th of Augttß, the plain* 
tiff then paid it. At the time when it 
was drawn, the defendants gave the 
plaintiff a paper in the following words ; 
'* Received, the 13th of June 1782, 
" of Mr. R. D. Hejkuyfon, his accept- 
•* ance for 300/. due 16th of Auguß,, 

" which 

In the nineteenth year of geohge iit. 

•* which wc promife to pay when due, 
" John Woodhridgi & Co." On the 
2 2d of yuiy, the defendants became 
bankrupts, and afterwards, obtained 
their certiricatc. 

Bouuer, for the plaintifF, argued, 
that the note given by the defendants 
was a mere indemnity, and that the 
plaintiiF's demand did not accrue till 
the bill was paid, and therefore not 
till after the bankruptcy. He relied 
on Chilton v. IVbiffin^ C. B. T. 8 Geo. 
3. A^/f. 13. 

Chamtrc, for the defendants, in- 
filled, that the Jiote was an abfolute 
engagement, and conüituted a debt 
within the meaning of the ftatute of 7 
Geo, I. r. 31. He agreed, that the 
meaning was to give an indemnity, 
but faid, the queilion whether the cafe 
was within the ftatute depended on the 
thing done, not the intention : that, 
in Chilton v. IVhißn^ the promife was 
in the alternative, and conditional, not 
pofitive, as in this cafe. He cited 
Macarty v. Barrvw^ and Zx parte Mi- 
chelle Cane. 23 Dec, 1 75 1. I Atk, 1 20. 

Lord Mansfieldy — The note was 
clearly nothing but an indemnity to the 
plaintifF, againft the confequcnces of 
his acceptance. 

Bullers Juftice,— This cafe is not 
diftinguifliable from Chilton v. Whißn* 
The money was not payable at all 
events, in the prefent cafe, to the plain- 
tiff. The defendants might have taken 
up the bill, and then the pL;intifF would 
have had no demand againll them. 
Judgment for the plaintifF [r>]. 


J 779- 


• [ 167 ] 

Coxv. LiOTARD,-ff. Ä,//. 24Grtf. 3. 

This was an adlion on a policy of in- 
iarance, on the life of J, H. Byde, 
lately gone to the Eafi Indies^ on the 
event of his dying between the 5th of 
April 1780, and the 5th of April 
1783. The defendant pleaded; i. 
bankruptcy generally, and that the 
caufe of a&on accrued before the bank- 
ruptcy ; a. that the policy was made 

prior to the time • of his 
becoming a bankrupt, 
then the trading adl of 
bankruptcy, petition- 
ing creditor's debt^ 
commiflion, proceed- 
ings, and certificate, 
fpecially, ad that he 
was thereby difcharged from the fiud 
policy, and all debts due at the time of 
the bankruptcy, without faying that 
the caufe of afiion accrued before the 
bankruptcy. To this laft plea, therd 
was a general demurrer. 

Chambrey for the plaintilF, iniifted> 
that this was a contingent debt, and 
not difcharged by the bankruptcy and 
certificate, not being within the aft of 
19 Geo. 2. cap. 32. % 2. for that, 
though the enadling words are general, 
<viz. " the afFured in any policy of in» 
*' furancc," yet, as the preamble only- 
mentions the cafes of infurance "on 
fhips or vcfFcls, and the goods and 
merchandizes loaded thereon," the 
conftrudtion ought to confine the ope- 
ration of the enabling part to fuch 
cafes ; that Fattifon v. Banks might be 
cited for the defendant, where it was 
held, that the general enabling words 
were not rcftrained by thofe in the pre- 
amble, but that there was a difference 
between the fubjed matter of that, and 
that of the ftatute, of 1 9 Geo. 2 ; for 
that, if the conftrudion of the laft- 
mentioned ftatute, inftead of being con- 
fined to voyages, which terminate in 
a given limited time, and are clearly 
what was in the immediate contem- 
plation of the legiflature, fhould be ex- 
tended to policies on lives, where the 
riik may remain unfettled for a very 
long and indefinite number of years, 
great inconveniences would follow. 
If the holders of fuch policies could 
claim under the commiffiopi the aftign- 
ees might either be obliged to im- 
pound efFedb for half a century ; or, 
if they ftiould, after a certain period, 
confider the debt as claimed and not 
ptoved, the policy creditor would be 
^_____ excluded 

[»>] Vide Hockrell (or Hockley) v. Bockig, C. B. M. l^ Geo. 3. 2 Slaci/i. 
Merry, B.R. E. 9 Geo. 2. 2 Str. 1043. 839. Ma/on v. Vere, C, B* T. 18 
Ca^ I'emf. hd. Hardiv. 262. Toung v. Geo. 3, 2 Blackfi. 1217. 

M 2 





excluded from his (hare 
of the bankrupt's eftate> 
in cafe the death ihould 
afterwards happen with- 
in the time iniured, and 
would yet be barred 
from any remedy againfl 
the bankrupt. 

I ord Mansfieldj (flopping Wood, who 
was for the defendant,) — ^Though the 
preamble does not mention infurances 
of this fort, yet they are within the 
fame mifchicf, and the ena^mg words 
are fufficient to comprehend them. 
The flatute of 7 Geo, 1. is fimilar to 
this, and the cafe of Patti/on v. Banks 
is in point. 

BiUUr, JulHce,— In Mace v. Cadell. 
B. R. M, 15 Geo. 3. Co^f. 232. it 
was determined, that the general enabl- 
ing words of 21 Jac. I. c. 19. § II. 
are not retrained by the particular 
words of the preamble. 

Judgment for the defendant. 

Johnson v. Spill er, B. R. H. 24 
Geo, 3. 

This was an aftion for money had 
and received, money paid, money lent, 
and on an account Hated. The de- 
fendant pleaded his bankruptcy and 
certificate, and that the caufc of aÄion 
accrued before the bankruptcy. The 
trial came on at Guildhall^ before Bui- 
ier, Tuftice, at the Sittings after Mi- 
thaelmas term, 1783, when a verdift 
was found for the plaintiff, with 37 B/. 
ij/. id. damages, fubjedl to the opi- 
nion of the court on a cafe refenred, 
which flated: That, on the 7th of 
O Hoher 1782, the plaintiff, being in 
want of 1 800 /. appbed to the defend- 
ant to indorfe his (the plaintiff's) pro- 
mifTory note for that fum, for the pur- 
pofe of difcounting it at the Bank ; and 
as a fecurity, or indemnity, the plain- 
tiff depofited, in the defendant's hands, 
three Ordnance debentures, with the 
ufual aiügnments thefeon, executed by 
the plaintiff, fo as to render them ne- 
gotiable, for which the following me- 
morandum was figned, "z/Zz. '< Re- 
ceived, 4th of September 1782, of 
Mr. Jams Jobnfon^ three Ordnance 

debentures, «v/«. ISc. (fpecifying them) 
amounting to 2077/. 4/. 10^. which I 
hold as a collateral fecurity for his note 
of hand to me, dated 5th Anguß, at 
three months, for 1 800/. due the 8th of 
Novembernext, J. Spillery J. John/onJ** 
The note for 1800/. was afterwards 
renewed, for the accommodation of 
John/on, by another, dated the 7 th of 
O Sober 1 782, payable in three months. 
On the 1 2th o£ November 1782, the 
defendant pledged one of the deben- 
tures for 779^ 5J. id. with MefTrs. 
Tibbitts, as a fecurity for 500/. for 
which he alfo gave his note of hand, 
payable two months after date. On the 
loth of January 1783, the plaintiff 
paid his renewed note of hand for 
1800/. to the Bank, to whom the de> 
fendant had indorfed it. On the 1 8th 
of January 1783, the defendant be- 
came a bankrupt, and, on the 29th of 
March following, obtained his certifi- 
cate. On the 3 ill of Oäoher 1783, 
the plaintiff redeemed the debenture 
for 779/. 5/. zd. from Meffrs. Tibbitts, 
by paying 378/. 1 j/. %d. the remain- 
der of the 500/. having been 
received by them as a di- [ 168 J 
vidend under the defimd- 
ant's commiffion. 

Wilfan, for the plaintiff".— AaaAw«, 
for the defendant. 

Wilfon contended, that this debt 
could not have been proved under the 
commifHon, and, therefore, was not 
difcharged by the certificate. The 
firll flatute which made bankruptcy 
and a certificate an abfolute difchargc» 
from any debts, was 4^5 Ann, r. 17. 
The words were, " Shall be difcharged 
'* from all debts by him, her, or them, 
" due, or owing, at the time that he, 
'* fhe, or they, did become bankrupt ;•• 
and thofe words have been continued 
in 5 Geo. 2. c, 30. § 7. There are 
only two other adb, v/35. 7 Geo. 1. 
r. 31. and i^Geo, 2. c. 32. which re- 
fpe£l the difcharge from debts, by 
bankruptcy. The former extending 
the operation of the bankruptcy in that 
refpedl, to debts, which at the time of 
fuch bankruptcy arc debita in pre/enii^ 
hyxt/ohenda infuturo, the other to cer- 
tain contingent debts therein fpecified. 




The prefent cafe falls within neither of 
thofe ads. The debt was not M all 
due from the defendant to the pliintifF, 
till the plaintifF had paid the money to 
MefTrs. TMitts, It was not, there- 
fore, debitum in prcfentiy at the time of 
the bankruptcy, and it was clearly not 
a contingent debt within 19 Geo, 2. 
It was SpilUr who borrowed the 500/. 
of MefTrs. TMitts. He gave his own 
promiflbry note for it, and alfo pledged 
one of the debentures, with John/on*^ 
confent ; for Jobnßn\ confent was im- 
plied from his having made the de- 
bentures negotiable. John/on , there- 
fore, was only liable to MefTrs. Tib- 
hitts as a collateral furety for Spiiler, 
and was not damnified till Oäober, 
when he redeemed the debenture, and 
that was after the bankruptcy. This 
refembles manv former cafes of fure- 
ties, and, particularly, that of Taylor 
V. Mi/Is, B. R, H. 17 Geo. 3. Coavf. 
525. where it was determined, that a 
furety in a bond, who paid the debt 
after the bankruptcy of the principal, 
was not barred by the certificate of the 
prmdpal, from recovering over againfl 
him, although the bond was forfeited 
before the bankruptcy. There is no 
fubilantial difference whether the furety 
gives a bond or not, or pledges part 
of his property. The only diftindion 
between this cafe and Taylor v. Mills 
is, that, here, Johnfon might have 
brought an action againft SpilUr, be- 
fore his bankruptcy, «u/z. as foon as 
he pledged the debenture. But that 
adion muft have been trover, the right 
to which certainly flill remains; for 
bankruptcy is no plea to an adion for 
a tort {a) ; and the circum fiance of 
the plaintifF's having got back the de- 
benture, would only go in mitigation 
of damages. The only objedtion, 
therefore, here, mufl be to the form 
of the aäion ; but, if the plaintifF has 
been obliged to pay the money in order 
to recover the debenture, why fhould 
be not recover that money upon an im- 



plied affiimpfet P He may 
wave his remedy for the 
tort,andafiirm the tranf- 
adionof the pledge, and 
then the cafe is the fame 
as if he had gone at firfl 
with the defendant to 
MefTrs. Tibbitts, and had then pledg- 
ed the debenture as a collateral te- 

Lord Mansfield, (flopping BaUnmn^ 
—This is a \tTy plain cafe. Johnfim 
wanting money, prevails on ^piller to 
lend him his nanife, by indoriing his 
note to be difcounted at the Bank, 
giving him, as a fecurity, this deben- 
ture, (among others,) and making it 
negotiable. This put it in the defend- 
ant's power to dilpofe of it, and he 
pledged it with MefTrs. Tibbitts. Af- 
terwards, on the loth ^i January 1783, 
John/on'^s note was paid at the Bank. 
From that time Spiller became his debt- 
or for money had and received, and 
was immediately liable in an adUon of 
aßimpfit. This was before the bank- 
ruptcy ; it was a debt which might 
have been proved under the com- 
mifiion ; and, therefore, it is difcharged 
by the certificate. 

Buller, JufHce,— It is not to be 
taken for granted, that a demand in 
trover cannot be proved under a com- 
miffion of bankruptcy ; where the de- 
mand can be liquidated, it may. It 
is only perfonal damage, as for an 
aifault, &c. that cannot be proved. 
But, here, the plaintiff* might have 
had a fpecial adlion of aßimpfit, as foon 
as the debenture was pledged. We 
are not to prefume the confent o^John^ 
fin. It was only depofited with the 
defendant, to be kept as a fecuritjr. 
As to the uncertsunty of the demand in 
fuch an adlion, would it have been 
more uncertain than the demand in ^ 
common action o^affumpfit on a quantum 
meruit y for goods fold ? 

The Poflea to be delivered to the 
defendant [l^*]. 

{a) Vide Goodtitle v. North, B. R. 
H. 21 Geo. 3. ' Infra^ 58/j.. 

[1^] A principal and furety give 
« bond for payment of money by in- 


flalments, and the principal gives the - 
furety, by way of counter-fecurity, in 
bond conditioned for the payment of 
the amount of the infiaiments, on a 




again (t 

day previous to that 
on which the ürft infbl- 
incnt is to be payable. 
Subfequent to the day, 
in the condition of the 
lad-mentioned bond,but 
previous to that on 
which the firft mftalmcnt is payable, 
the principal becomes a bankrupt, and 
afterwards obtains his certificate. After 
this, the furety pays the inftalments, and 
then brines aßmtfit againft the prin- 
cipal. The court was of opinion, that 
the furety might have proved the fum 
in the condition of the bond to him, 
under the commiffion, and therefore 
they held, that the aftion was not 
mamtainable. TouJJhinty. Martinnant^ 
B. R. M. 28 Geo. 3. 2 Term. Rep. 100. 
And, in a fubfequent cafe, it was de- 
termined, that if a counter-bond is 

given by the principal, to the furety^» 
coAitioned for the payment of the 
fum fer which he is bou;»d, on the day 
previous to that on which the principal 
fum is made payable ; this is a debt 
which the furety may prove under the 
commiffion of the principal, though he 
become a bankrupt, before the day of 
payment in the bond to the furety, 
and before he has been called upon to 
pay any thing for the principal. Con- 
fequently, the principal, after he has 
obtained his certificate, cannot be fued 
by the furety. Martin v. Ctfurf, B. 
R, 7'. 28 Geo. 3. 2 Term Rep. 640. 
Vide alfo, of another clafs of debts. Ex 
parte Majd'well, Cane. 1785. 1 Co. 
Btutkr. 204. Ex parte Beaufoy, Cane, 
1787. li. 20^. Ex parte Lord CJanrr- 
car de ^ Cane. 1787. lb. 209. and Ex 
parte Brymer, Cane. 1788. lb. 211. 

C 109 3 

Monday, 3d 

In a joint ac 
tion againft 
feveral, the 
plaintiff can- 
not be non- 
proffed unlefs 
by all the de- 

Powell againß White and Ckhera. 

- /^N a rule to fhew caufe, why the judgment of non-pros 
^^ in this cafe fliould not be fet afide, for irreguhrity^ 
the circumftances were, that the plaintiff had fued out 9 
bailable writ againft three, that one was arreftcd, and put 
in bail, and, the plaintiff not having declared againft him 
within two terms, he figned judgment, the other two de- 
fendants not having appeared to the writ. 

Caufe was this day ilicwn ; but the court was clearly of 
opinion, that, in a joint aftion, the plaintiff could not be 
nofi'projjed by one, or fome of the defendants, without the 

Bearcroftj for the plaintiff. — The Solicitor General^ for 
the defendants [f 56]. 

The rule made abfolute. 

[f 56] But, where two defendants, 
in ajjumpfit^ fevered in pleading, and 
the one pleaded a bankruptcy, which, 
on iffue joined, was found for him, it 
was held, that the plaintiff might enter 
a nolle profequi^ as to him, and ftill pro- 
ceed to final judgment and execution, 
againft the other ; l^oke v. Ingham, B. 
R. E. 18 Geo. z. 1 Wilf, 89. Fide 
alfo Weiler v. Goyton, B, R. T. 30 ^ 
31 Geo. 2. I Burr, 358. where it was 
held, that, when there is judgment by 
default againft one defendant, in a joint 

adlion, the other cannot non-fuit the 
plaintiff, at the trial, on i/Tue joined by 
him, nor, if the plaintiff negleft to pro- 
ceed to trial, can he obtain judgment 
as in cafe of a non-fuit under 14 Geo* 

2. e. 17. § I. 

Pbilpot V. Müller, B. R. T, 23 Geo. 

3. was an adion of trefpafs againfl 
two, who fevered in pleading, and one 
of them figned judgment of non-pros, 
and fued out execution thereon. Th« 
execution was a ea. fa. in trefpafs on 
the cafe, inftead of trefpafs. Tlie 



judgment was of E. 23 G/«. 3. On a /er v. Gorton [r>]. 1770 

rule to (hew caufe, why the judgment However, he faid, as , ^^^* , 

and execution (hould not be fet afide, the judgment was of a p — ' 

for irregularity, BMr, Juftice, faid, former term, it could *^owell 

there was a great difference between a not be fet afide upon jj^ß^ 

nolle proßqui, (as in Noke v. Ingham,) motion, but muft be White. 

and judgment of non-pros ^ for that, by revcrfed by writ of er- 

the latter, the plaintiff is put out of ror. But, as to the execution, the 

court as to all the defendants. He court ought to interfere, becaufe it 

cited Parker v. Laivrence, Cam, Scacc, could not be got at by writ of error, 

H. 1 1 Jac, 1 , Hob. 70. Slo^ley v. and the party had no other remedy. 

Eveley, Cam. Scacc. T. 12 Jac. I. Hoi. Therule was made abfolutc, for fet- 

180'. fFaljh V. Bißop^ B. R. //. 7. ting afide the execution, the plaintiiF 

Car, I. Cro. Car. 239. 24.3. and^/W- undertaking not to bring anadbn. 

[Ö*] B. R. rj^o esT 31 Geo. 2. l Burr. 358. 

Le Chevalier, Aflignee of Dormer, a f 170 3 
Bankrupt, againß Lynch and Another. Monday, jd 


A Creditor of Dormer^s^ to whom he was indebted Money owing 

•^^ before he became a bankrupt, attached, in the Ifland outofEnorlaiid 

of St. Chriflophersy after the bankruptcy, a fum of money ^® * J>ankrupt 

i_ r f / T^ A r. J r f »^ ™ay be attach* 

owmg by Lynch to Dormer. Afterwards, Lynch commg ed by the law 

to England^ the plaintiff brought an aftion againft him, of the place 
to recover the debt owing by him to the bankrupt \ and ^^^» "W" * 
Lynch applied to the court for a rule to ihew caufe, why f iu*|^"t. 
the trial (hould not be put off, till he fhould be able to ruiScy/ ' 
procure from St. Chriflophcr^s evidence of the debt having 
been attached in his hands, in the manner juft dated. 

On fhewing caufe, this day, it was contended, that, as 
the debt for which the money was attached was due be- 
fore the bankruptcy, the creditor was only entitled to his 
(hare of the dividend under the commiflion, and could not 
attach the money in the hands of Lynch, becaufe tlie right 
to the money owing by Lynch was, by the aflignment, 
vefted in the plaintiff, for the benefit of all the creditors. 

Ix)rd Mansfield, — If a bankrupt has money o\dng to 
him, out of England, as in St. Chr'iftopher^s, Gibraltar, Üfr. 
the affignmcnt under the bankrupt laws lb far veils the 
right to the monev in the afhgnees, that the debtor fhall 
be anfwerable to tnem, and fliall not turn them round by 
faying he is only accountable to the bankrupt. In ScoU 
land they permit aflSgnees of a bankrupt in England to fuc 
for money owing to the bankrupt in Scotland ; and it has 
been determined, at the Cockpit, upon folemn confidera- 
tion, that bills by Engli/h affignees may be maintained in 
the Plantations, upon demands due to the bankrupt's 

M 4 eftatct 


Lb Cheva- 
again (I 

C 171 ] 


cftatc. In the cafe of Wllfon the agent (^), Lord Hard" 
nuicke went fo far as to refufe to permit the Scotch cre- 
ditors to come in under the commiflion, on the fame foot- 
ing with thofe in this country, unlefs they would abandon 
the priorities which they had obtained by the law of ScoU 
/andj as to the efFefts there [13]. But if, in the mean 
time, after the bankruptcy, and before payment to the 
aflignees, money owing to the bankrupt out of England 
is attached, bond fide^ by regular procefs, according to the 
law of the place, the afFignees, in fuch cafe, cannot re- 
cover the debt. 

The rule made abfolute [ö*]- 

(^) Reported 1 Atk, 128. by the 
name of Richard/on and aU aflignees of 
Wilfon V. BradfljaiM^ 25 th Fehrua,y 
1752. But this point is not men- 

[13] Vide the cafe of Braajhaiv Sc 

Roß, aflignees of Hll/on, v. Fairholme 
and another, in the colledion of Deci- 
fions of the Court of Seflion from 1752 
to 1756, /. 198. 

[C^] Vide Uunier v. Potts, B. R. 
T, 30 Gto. 3, 

Monday, 3d 

The Court, 
under particu- 
lar circuin- 
ftances, will 
permit a new 
trial to be 
moved for 
after the four 
dnys are ex • 
pircd.— In an 
ai5lion for 
crim. con. an 
aclual mar- 
riage may be 
proved by a 
copy of the 
regifler, and 
the minifler, 
clerk, or fub- 
i'crihing wit- 
ncfles to the 
regifter, are 
not the only 
wirncfles to 
prove the 
identity of 
the pcrfons 

BiRT againß Barlow, 

THIS was an aftion of trefpafs and aflault, for crimi- 
nal convcrfation with the plaintiff's wife. It was 
tried before Blackstone, Jußice^ at the laft Aflizes for 
Kent^ when, by the direöion of tlie Judge, the plaintiff 
was non-fuited. 

On Monday, the 26th of April, Rot/s moved for a rule 
to fhew caufe, why the nonfuit fhould not be fet afide, 
and a new trial granted. 

iredntfday, the 2ift of April, was the firft day of the 
term, and, by tlie practice of tliis court, all new trials, 
(in caufes tried in vacation,) muft be moved for within 
four days of the beginning of the term, including the 
firil \ fo that Saturday, the 24th of April, was the laft 
day for moving. However, Rous having ftated that he 
had underflood that the four days were reckoned excluftvf 
of the firft, and Blackstone, Jußice, having defired at 
the tAl, that the opinion of the court fliould be taken» 
tlie court entertained the motion, which was founded on 
the ground of a mifdireoion in point of evidence ; and 
the rule was granted [c]. 

This day Buller, Jußice, read the Judge's report, 
which was as follows : 

The firft witncfs called by the plaintiff was Thomas 
Sharpe, who proved a copy of the regifter of the parifh 
of St. Alfred, Canterbury, in hac verba — " ^1^1 y No. 106. 
*< John Birt, Efq; of the parifli of St. Margaret, Rochefler^ 

« Co. 
(0 Vide infra. Rex v. Gougb, f. 21 G. 3, /• 791. 



^* Co. Kenty and Harriot Champueys of this parifh, mar- j 770, 
** ried by banns 15 December 1767, by John Lynch, mi- , /^^* 
** nifter. WitnefTes, Robert Lynch, Francis Champneys, Birt 
*« ^««^ Lynch J Elizabeth Lynch [14]." — Another witnefs, agatnft 

{Sufanna^ ) was next called, to prove the fa£i of Barlow. 

adultery. — I was of opinion, that this was not fuiEcient r 172 1 
evidence of the marriage, but that the identity of the *- ' ■■ 
parties muft be proved, elfe it might poflibly be a rcgifter 
of the marriage, not of the plaintiff and his fuppofed wife, 
but of fome other perfons of the fame name. — ^The coun- ^ 

fel for the plaintiff then faid, that, in the courfe of their 
examination to prove the adulterous intercourfc, it would 
come out from the mouths of the witneffes, that the 
plaintiff's reputed wife was of the name and family of 
Champneys, and that, they have long cohabited together, 
and were efteemed to be man and wife by all their friends 
und relations. — I ftill thought that the evidence, fo open- 
ed, would be infufficient, holding, in conformity to the 
cafe of Morris v. Miller , reported in 4 Bt4r. 3057 (</), (and 
of which I alfo had a manufcript note of my own,) that 
this was the only civil cafe in which proof of an a£^ua^ 
inarriage was requifite, as contradiftinguiflied from ac- 
knowledgment by the parties, cohabitation, reputation, 
fe"r. That the beß proof that could be given of an adlual 
marriage, was by fome perfon perfonally prefent at the 
folemnity, which, in my fmall experience, I had never 
feen an inftance of not producing. If it did not appear 
that there were any perfons prefent befides the minifter 
[j^Sl ^rid he was dead, perhaps other collateral proof 
might be admitted, which might render probable the iden- 
tity of the plaintiff and his wife, and the perfons whofe 
marriage was fo regiftered. But that,' in the prefent cafe, 
there appeared to have been no lefs than jßve nvitnejfes 
prefent at the marriage thus regiftered, which was only 
eleven years ago. That the marriage aft had direfted the 
witnefles to fubfcribe their names to the regifter (^), in 
order to facilitate the inveftigation of the legal evidence of 
marriages. — And that till thefe five witneffes and the mi- 
nifter were accounted for, as by Ihewing them all dead, 
or the like, I could not admit lefs proof than that of Arne 

rrfon prefent to demonftrate the identity of the parties.—« 
accordingly nonfuited the plaintiff. After which a 
proftor from the ecclefiaftical court, then prefent, de- 
clared openly that he had been fubpoenaed by the plaintiff 


[14] I prefume the names of the {/) B. R. E. 7 G. 3. Since report- 

hufband and wife were alfo fubfcribcd» ed, i Blackß. 632. 
although that was not ftated in the [15] Two witneffes at lead, befides 

report. It is cxprefsly required by the minifter, arc cxprefsfy required by 

the marriage aä, 26 G. 2, c. 33. % the marriage aa. S >S- 
15. (0 26 G. 2. o 36. J 15. 


I770« *^ prove, and could prove the taking out of a Ueence for 

^ ' ' ^ the marriage of the plaintiff and his reputed wife. I 

ß,,^Y mention this circumftance, though it could be no ground 

againd of my determination, as it ihews ^ fometh'mg more tJmn a hare 

Barlow. poffihU'tty that the plaintiff and his wife were not the idcn- 

* L 173 ] ^^^'^ perfons fo regiftered as marrying by bans. 

Knnpe^ Serjeant, and Peckhantj (hewed catife.— Tliey 
argued, that the marriage aft meant to introduce fome 
more accurate proof of marriages than what was in ufe 
before the pafling of that aft. This purpofe was exprcffed 
in the preamble to the 15th feftion. It had accordingly 
been cnafted by that feftion, that witneffes (liould he 
prcfent, who (hould fubfcribe their names to the regiftcr ; 
and the purpofe of fuch fubfcription muft have been to 
point them out, that they might be produced when it 
Ihould become necefiary to prove the marriage. There 
is no cafe in the law where fubfcribing witnefles are ne- 
ccflary, and yet it is not neceflary to produce them, or, if 
they are fhewn to be dead, to prove their hand-writing. 
The regifter proved the marriage of two perfons of the 
fame name with the plaintiff and his wife, but could not 
Ihew that they were thofe identical perfons. 

Dunnhigy and RottSy in fupport of the rule, obferved, 
that the preamble to the feftion of the marriage aft relied 
on, profefTed an intention to render the proof of marriages 
vtore eafyy and it would be a ftrange folecifm to conftrue 
it fo as to render them more difficult. It was admitted, 
that the proof of a marriage was complete, and no cafe 
could be (hewn which had determined, that there could 
be no other evidence of the identity of the parties, but 
the teftimony of perfons prefent. Proof of the parries 
having been feen going to church the morning of the day 
mentioned in the regifter, or fleeping together that night, 
would furely be evidence of the identity, and fo would 
proof of their having cohabited together from the time of 
the marriage downwards. In an aftion for goods fur- 
nifhed to a wife, evidence of cohabitarion and reputation 
is fufficient. In a cafe of criminal converfation, fome- 
thing more, viz, an aBual marriage muft be Ihewn. This 
is done by the regifter; and when that is coupled with 
evidence of cohabitation and reputation, the proof is com- 
plete. As the copy of the regifter only was produced 
(and was all that was necefTary) the witneffes could not 
have proved their atteftation, even if they had been 

Lord Mansfield,— From the report, it appears, that 
the ground of the nonfuit was an idea, that the identity 
muft be proved by the minifter, or fome of the attefting 
witneffes, unlefs their not being produced is accounted 
for^ in the fame manner^ as is required in the cafe of fub- 


fcTiblng witneflcs to a deed. The counfel for the plain- j 770. 
tiff dated other evidence of the identity ; whether fuch as ^ _ - ^ 
would have been fufficient when produced, (as that might, Birt 
or might not be, according to the differences arifmg from againft 
the manner of ftating it,) I give no opinion. But the Barlow. 
judge decided, that it was necejfary to produce fome of the 
fubfcribing witneflcs. The claufes in the marriage aft 
relative to regifters are of infinite utility to the kingdom. 
They were meant, as well to prevent falfe entries, as to 
guard againft illegal marriages without licence^ or the 
publication of bans. The regifters are direfted to be kept 
OS public books, and accompanied with every means of au- 
thenticity. But, befides facilitating and afcertaining the 
evidence of marriages, they were intended for other wife 
purpofes. They are of great affiftance in the proof of 
pedigrees, which has become fo much more difficult fince 
mquifitions poß mortem have been difufed, that it is eafier 
to eftablifli one for 500 years back, before the time of 
Charles M.xkizn for 100 years fince his reign. But this 
advantage would be loft, and it would be very prejudicial, 
if the a£l were fo conftrued as to render the proof of 
i^arriages more difficult than formerly. I take it for 
granted, that the law ftands as it did before in that re- 
fpeft. Regifters are in the nature of records, and need 
not be produced, nor proved by fubfcribing witnefTes. A 
copy is fufficient, and is proof of a marriage in faft be- 
tween two parties defcribing themfelves by fuch and fuch 
names and places of abode, though it does not prove the 
identity. An aftion for criminal converfation is the only 
civil cafe where it is neceflary to prove an aBual marriage. 
In other cafes, cohabitation, reputation, Isfc. are equally 
fufficient (incQ the marriage a£l as before. But an aftion 
for criminal converfation has a mixture of penal profecu- 
tion; for which reafon, and becaufe it might be turned 
to bad purpofes by perfons giving the name and charafter 
of nmfe to women to whom they are not married, it ftruck 
me, in the cafe of Morris v. Miller^ that, in fuch an 
aftion, a marriage in faft muft be proved. I fay, a mar- 
riage in faEl^ becaufe marriages are not always regiftered 
There are marriages among particular forts of difTenters, 
where the proof by a regifter would be impoffible, and 
Dennisok, Jußicey in a cafe of that kind which came be- 
fore him, admitted other proof of an aäual marriage. 
But, as to the proof of identity, whatever is fufficient to 
fatisfy a jury, is good evidence. If neither the minifter, 
nor the clerk, nor any of the fubfcribing witnefTes, were 
acquainted with the married couple, in fuch a cafe, none 
of them might be able to prove the identity. But it may E '75 3 
be proved in a thoufand other ways. Suppofe the bell- 
ringers were called^ and prored that they rung the bells, 


1 75 


Bah LOW. 


and came immediately after the marriage, and were paid 
by the parties ^ fuppofe the hand-writing of -the parties 
were proved; fuppofe perfons called who were prefent 
at the wedding dinner, i^c. isfc. 

WiLLES, and Ashhurst, Jußtces^ of the fame opinion. 

BuLLER, Jußicfi — ^The original regifter is not ncceflary 
to be produced, and it is only where that is required, that 
fubfcribing witnefles muft be called. In this cafe, the 
wife's maiden name was Harriot Champneys, Suppofe a 
maid fervant had proved that (he always went by that 
name till the day of the marriage, that fhe went out that 
day, and, on her return, and ever fince, was called Mrs. 
Birt ? Surely that would have been evidence of the idea-» 

The rule made abfolute [16] [f 57]. 

[16] The caufc was tried again, at 
the cnfuine Aflizes^ and a verdid found 
for the plaintiff. 

[t 57] ^i^^ Hemmings v, 
B. R. M. 25 Geo. 3. 


wednefday, DoE, Leflcc of MATTHEWS and Others, againß 
3^1» May. Jackson and Another. 

A notice to |N this ejeflment, which was tried before BLACKSTONEt 
?"/{. u •*'^f ft Jnß^^^y ^^ ^^ ^^ft affizes for &urry^ the only queftion 

" on double ^^^^ °" ^^ notice to quit. The demife was laid to be on 
•« rent," it ^^^ 27th of March 1 777, to hold from the 26th of the fame 
good to fup. March^ and the notice to quit, which was in writing, was 
port an ejcft- in the following words : " I defire you to quit the poflef- 
ment- «4 fion, at Lady-day next, of, l^c. or Ißall inftß upon dothk 

*< rent for the fame." The judge direfted the jury to find 
a verdiö for the plaintiflF, but with leave to the defendant 
to apply to the court, without cofts, for a nonfuit. This 
was accordingly done, and a rule to fliew paufe was grant- 
ed, which now came on to be argued. 

Beckham^ for the plaintiff. — Dunning^ Miffgny, and 
Lane^ for the defendants. 

On the part of the plaintiff, a cafe was mentioned, (on 
the relation of Wheeler^) which had come before Smythe, 
Barofij at Lincoln, where he had over-ruled the objeftion 
to a fimilar notice ; and cited a prior cafe of tlie fame fort, 
[17^] in which Noel, Jußice, having ruled that the notice wa& 
good, his opinion had been confirmed by the court of Cwn^ 
mon Pleas. 

On the other fide, it was contended, that it was impof- 
fible to know whether the cafes referred to were parallel to 
this, unlcfs the words in tlie notices could be fliewn to 
have been the fame« Here, the landlord bad propofed m 



alternative to the tenant, and given him an option, viz. 1 770. 
cither to quit at Lady-day ^ or, (if he chofe,) to hold over, t _ _ j 
paying double his then rent. It could not be fuppofed, Dqe 
but that, if the defendant, on receiving this notice, had againfl 
gone, and offered to continue at double rent, the landlord Jackson« 
would have agreed to it. It could not fairly be faid, (as 
had been contended at the trial,) that the latter part of the 
notice was only meant to declare the legal confequence of 
holding. over, fince the ftatute of 4 Geo. 2. {/) does not 
give double the rent^ in fuch cafes, but double the value. 

Lord Mansfield, — ^That the landlord may give the te- 
nant the alternative is clear ; but the queftion is, what is 
the meaning of this notice. If it had really contained the 
option of a new agreement, and had faid, for inftance, 
^ Or elfe that you agree to pay double rent,'* the ejcftment 
could not have been fupported. But, here, the landlord 
does not mean to offer a new bargain. I think this very 
point has been fettled feveral vears ago ; but if it is new, 
I have no doubt. The additional words only prove the 
landlord's anxiety to get into pofTefTion. It is an empha- 
tical way of enforcing the notice, and (hewing the tenant 
that he is in carneft, by informing him of the legal confe- 
quence, if he hold over. The tenant may keep him out, 
by defending an ejeftmcnt, and by chicane, for feveral 
months, but the notice informs him, that, in fuch cafe, 
the landlord will infift on the penalty. It clearly means to 
refer to the ftatute, although the penalty given by the fta- 
tute is not double rent, but double the yearly value, which 
is more favourable to landlords, for double rent would be 
no penalty on the expiration of fomc leafes [17]. 

WiLLEs, Jußlcey — The notice is to be confidcrcd as hav- 
ing two parts 5 I. The common notice to quit ; 2. A warn- 
ing to the tenant of the confequence, if he ftiall difobey 
the notice, and put the landlord to the neccffity of bring- 
ing an cjcftment. 

AsHHURST, and Buller, Jußices^ of the fame opinion. 

The rule difcharged [(ö*]. 

(/) C. 28. § I. that he means to quit, and docs not, is 

[17] ^y II Gfo. 2. c, 19. S 18. the douHtrent. 
penalty, when tht tenant gives notice [0*] T/Vdr Meßnger v. Armßroug^ 

B, R. M, 26 Ceo, 3. I Term Ref. 53. 




Saturday, fih The KiNG agatfiß the Mayor and Burgesses 
^*^^' of Lyme Regis, on the profecution of Ar- 

thur Raymond. 

On a manda- 
mus to rcftore 
to the office 
of a capital 
burgefs, if 
the return 
fiatc the 
ground of 
the disfran- 
chifement to 
have been, 
the non-at- 
tendance of 
the piofecu- 
tor at a meet- 
ing to which 
he was fum- 
nioned for 
the eleiJlion 
of a capital 
burgefs, an 
averment that 
the light of 
fuch eleftion 
is in the capi- 
tal buigeffes 
being the com- 
mon council, 
does not aflcrt, 
with fufficient 
certainty, that 
he had a right 
to concur m 
the ele£lion, 
and ought to 
have obeyed 
the fummons, 
becaufe, con- 
iiftently with 
fuch an aver- 
ment, he 
might not 
have that 
right, it not 
thereby that all 
the capital 
burgefles are 
members of 
the common 

•[ 178 ] 

Ti/fANDAMUS to reftorc the profecutor to the office 
•^'^ of a capital burgefs. 

The return ftated, That Lyme Regis was a borough by 
prefcription. That the mayor and burgefles had been im- 
memorially accuftomed to have, and ftill ought to have, 
within the borough, a certain guild-houfe, called the Moot^ 
hally or Guild'haiL That Queen Elizabethy by letters pa- 
tent of the 26th of Juney in the 33d year of her reign, 
granted, (inter alia in the return dated,) that there (hould 
be in the faid borough, a mayor and eleven burgefles in 
number, only, out of the burgefles of the borough or town 
aforcfaid, [life, as dated within the parentheßs^ fupra^ from 
p. 150 to />. 151. in the cafe of Francis Fane and John 
Luther"]. That the letters patent, in the particulars in the 
return fet forth, had been accepted, and a£ted under to 
the prefent time. That, from the time of granting the 
letters patent, every capital burgefs, upon his admiffion 
into the office, had been accudomed to take [the fame oath, 
and in the fame manner, and fet forth in hac verba^ as in 
the cafe of Fane and Luther y fuproj p. 149]. That the 
profecutor was eledled a capital burgefs 6n the 27 th of 
Auguß 1759, and fwom in on the fame day. That, on 
the loth of Anguß 1778, the mayor duly appointed a 
meeting or convocation of the mayor and capital burgefles, 
to be holden at the council chamber within the Moot^^all 
or Guild'hally on the 15 th of Auguß y at eleven o'clock in 
the forenoon, to eleft one of the burgeflTcs into the office 
of a capital burgefs, in the room of Henry Fane deceafed. 
That, before the 1 5th of Aitgußy he caufed due notice to 
be given to all the capital burgefles, within the reach of 
fummons, of his having appointed fuch meeting, and 
caufed fuch due notice to be given on the nth of Augußy 
to the profecutor in perfon, whereby he fummoned him to 
attend at the council chamber, witliin the Moot-^hall, at 
the faid meeting. That, on the 15 th oi Auguß y the mayor, 
and George Kirby^ and Robert Clarhey two of the capital 
burgefles, met at the council-chamber for the purpofc of 
holding a meeting of the mayor and capital burgefles ac-^ 
cording to the notice, for the eleftion of a capital burgefs 
in the room of the l;nd * Henry Fane deceafed, but that dicy 
not being a fufficient number for tliat purpofe, and becaufe 
a fufficient number did not then and there appear, to hold 
fuch meeting, none could be or was then held^ and that 



the profecutor did not attend or apnear at tJic hour of 1 770. 
eleven, nor at any time on that day, according to the ap- y _ ^ 

pointment and notice, but, contriving and deßgning, w;7- The Kin c 
Jid//y to prevent the mayor and capital burgefles from hold- againft 
ing fuch meeting for tlie purpofe aforefaid, did wilfully ab- Lyme 
fcnt himfelf from the council-chamber during the whole Rscis. 
day, and did, on the faid day mentioned, combine with the 
Hon. Henry Fane^ (and fix others, by name,) being, or 
claiming to be, capital burgelVes, and having alfo before 
received notice [18] of the faid meeting, to prevent fuch 
inecting from being held, and that, in profecution of fuch 
combination, they wilfully abfented themfelves from the 
council-chamber during the whole of the faid 15 th oi Au^^ 
gufi ; and that, by reafon of the abfence of tlie profecutor, 
and of a number of other capital burgefles fufficient to 
proceed to the eleöion, no meeting for the faid purpofe 
could be or was held on the 15 th oi Augußy according to 
the appointment and notice. That the mayor, on the faid 
15 th of Augußy duly appointed another meeting to be held 
at the council-chamber, on the 21ft of Anguß ^ for the 
fame purpofe [ffhen the fame allegations with regard to 
the meeting appointed for the 2 ill of Auguß^ as thofe 
above ftated, excepting that the charge of combination 
was not repeated]: And that the profecutor, by his faid 
wilfully abfenting himfelf from the faid feveral meetings 
fo appointed for the 1 5th and 2 1 ft of Augußj and by his 
faid combination, did ivilfully negle£t and violate the duty 
and execution of his office, contrary to tlie duty thereof, 
and the obligation of his oath. That, at a meeting of the 
mayor and burgefles, held according to the immemorial cußom 
of the horoughy at the Moot-hall or Guild-hall ^ on the 3 1 fl: 
of Auguß 1778, John Coadcy one of the capital burgefles, 
exhibited certain articles of complaint againft the profecu- 
tor, and, by the fecond {g) of the faid articles, charged him 
with having received previous and due notice, and with hav- 
ing been duly fummoned to appear at a meeting of die mayor 
and capital burgefles \j^c. ftating the circumftances relative 
to the meeting of the 15 th of Auguß ^ in the manner before 
alleged in his return, ivith the cmijfion of the charge of com- 
Unation (A)]. And that the faid Coade^ by the third of the [ 1 79 3 
faid articles \tffc. ftating in like manner the circumftances 
relative to the meeting of the 21ft of Auguß'], And that, 
thereupon, at the faid meeting of the 31ft of Augtß^ it 
was ordered, that a copy [ÜJ'r. ftating precifely the fame 
proceedings as in the cafes of Francis Fane and John Lu- 

[18] There was no allegRtion that which had been amended. Supra, Rex 

Chey had httn fummoned , Infra, p. 179. v. Lyme Regis on the profecution of the 

Note (/»). Hon. Henry Fane^ /. 135 to 137. 

{g) This was one of the returns {h) Infra, /• 180. Note (/), 


1 7 70. ^^^'^ (')3* '^^^^ ^^^ mayor and burgefles had adjodgsd Aat 

^ ^ ^ -^^ ^ Raymond was guilty of the abfences» contempts, n^leäi^ 

The Kl KG breaches of duty, mifbehaviours, and other matters wi 

again ft things objected and charged againft him» by die ÜDOOod 

Lymb and third articles of the faid complaint. That he had not 

Regis» fliewn any juft caufe, is^c. that the mayor and burgcfib 

had thereupon refolved, that for, isl'c. he ought to be le- 

movedy and did then and there remove him, and that he 

had not fmcc, is^c, and that for thefe reafons, äV. 

Rooify for the profecutor, infifted, that, in order to fup- 
port the disfranchifement, for wilfully difi;4)eying the fiun- 
mons of the mayor to attend an eleäion of a capital bur- 
gefs, it v/as incumbent on the defendants to (hew; i.That 
Raymond's attendance was neceflary ; 2. That he knew it 
to be fo 5 and, 3. That the charges againft him were fuffi- 
cicntly clear for him to be able to prepare and make his 
defence, i. It did not appear, by the return, that his pre- 
fence was neceflary, for the eleöion to fill vacancies in the 
oflTice of capital burgefles was there ftated to he ** by the 
** other capital burgeßes being the common council^ or ^ by 
« the reß of the council (i). It was not ftated diat M the 
capital burgefles were of the common council, nor that 
Raymond himfelf was. If the whole of the charter had 
been fairly ftated in the return, it would have appeared 
that only ftx of the capital burgefles were of the council. 
Even if they had alleged that all the capital burgefles were 
of the common council, that would not have been fufi&- 
cient, without going on to allege, that Raymond was of it^ 
for, without fuch allegation, his being io would only ap- 
pear argumentatively ; Rex v. Mayor of Herefird (i). Rex 
V. Stevens (/). They ought to have Hated how many would 
have made a majority, fo that, if Raymond had been pre- 
fent, an elcftion might have been had. They fliould alfo 
have fet forth, that the perfons with whom he was charged 
to have combined were fummoned to attend (m). 2. It 
ought to have been fliewn that he knew his prefence was 
[ 180 ] neceflary, die word ivilfully not being a fu£Bcient allega« 
tion, for it only exprciPes an inference of law; Rjx r. 
Richard/on («), Clegg's Cafe {0). 3. There is nothing faid 
in the articles aboot combination (^), tlierefore he could not 
be prepared to anfwer that part of the ofltmce ftated'in the 
return. The words " contriving and fraudulently defigmng 
*« wilfully to prevent^** &c. are only inducement, and do 
not amount to a pofitive charge, and, in a cafe like this, 
as in indiciments, the charge ought to be direä ; Rex v. 


W ^/f «' P- »5«> »53- W ^. 3« ^fO' 2. Rex v. Lh^erpool. 

Ill ^' ^ ^ ^^' ^°^* ^" ^^ profccution of Cleig, 2 Bmrr. 

{r^ySupra. p, 178. Note [i8]. ^%'llpra, p. 178. Note {*)• 

(a) 1 Burr. 517. * ' * ' 


Whitehead (^), 1 HaivL r. 25. . 60. Raymond's offence, j 770. 
as dated, was in the charaöer of a member of the council, i i 

not PS a capital burgefs, and therefore he ought not to have Xhe King 
been removed from the office cf a capital burgefs. again ft 

La*wrence^ on the other fide, contended, i. That the Lyme 
court could not go out of the return, aud confider any fup- Regis. 
pofed part of the charter not ftated there. By the charter, 
as there fet forth, three provifions were made concerning 
the appointment of capital burgeffes. iy7, A mayor and 
eleven capital burgcfies were created by name. 2^/y, Four 
were to be chofen by the mayor and the majority of the 
eleven, and when one of thofe (ixteen fhould die or be re- 
moved, it was to be lawful for the other capital burgefles, 
hehig the common coinicil^ or the greater part of them, to 
eleÖ another. 3<//)', When, afterwards, the place of any 
of the fixteen became vacant, it was to be filled up by the 
reft of the council, or the majority of them. The charter 
then goes on to fay, that it fhould be lawful for the mayor 
and capital burgejfes to appoint a guild or council-houfe, and 
** that the faid mayor and capital burgeffes^ the common council 
•* of the borough or town aförcfaid, or the majority, fliould 
•• and might hold in the Moot-hall^ a convocation of the 
** fame mayor and capital burgefles, or the greater part of 
** them (r)." All this Ihews clearly, that all the capital 
burgeiTes are of the common council. The expreflion of 
** the faid mayor and capital burgeffes the common council j* is 
to be applied by neceffary reference to the former part of 
the fcntence, where the words " mayor and capital burgefei* 
only are -ufed. By the oath, which is ftated as necell'ary 
to be taken by all the capital burgefles, they fwear to keep 
fecret what is done in the council-houfe. 2. The queftion 
whether Raymond's prefencc was neceflary, depends on the 
former, whether, as a capital burgefs, he had a vote in the [ 1 8 1 ] 
ele&ion, and therefore, from the arguments which prove 
that he had a vQtc, the neceflity of his prefence follows of 
courfe. 3. The words *' contriving and fraudulently deftgn^ 
*< ing^* Hfc. are not mere inducement, but of the efl'cncu 
of the charge. In all cafes where the degree of criminality 
is in queftion, that form of words is proper and fufTicient. 
In an aftion for a malicious profecution, it is fufficient to 
fay *' contriving and malicioufly intending," although ma- 
lice is eflential to ground that aftion. In an indiftnient 
for an aflault with intent to commit a rape, or to ftab, it 
is fufficient to fay that the party " intending and contriving," 
Isfc. Confederacy was no part of the accufation, which 
was only wilfully abfenting himfelf to prevent an elc£lion, 
and the queftion was, whether that was a fufficient ground 
for disfranchifemeiit. It appeared tliat a majority had 


(q) r. 5 fP\^M. I Soli. 371. (r) Supra, p. 151. 

Vol. I. N 


1 77Q. ^^^^ fummoncd, and it would be ftrange doftrinc to (ay^ 

V — - f that becaufe, by the non-attendance of a fufficicnt number 

The King of others, no eleftion could have been had, the profe- 

againft cutor fliould therefore pafs unpuniflied for his non-attend- 

Lyme ance. In the cafe of die Mayor of Hereford it did not ap- 

R£Gis« pear that the majority could ele£i, and it might there have 

been neceflary that two-thirds, is^c* (hould concur. 

Lord Mansfield, — ^Undoubtedly the principle is true, 
that returns mud be certain, and not argumentative. In 
the cafe of Rex v. Tie Mayor of Hereford^ it feems very 
ftrift to confider the return as argumentative for the reafon 
there mentioned. But the ground fuggefted by Mr. Law^- 
rence^ for the decifion in that cafe, feems a very good one. 
I doubted, for fome time, on the queftion, whether, in 
the prefcnt cafe, it is fufficiently (hewn in the return, that 
Raymond was of the common council. That he fliould be 
of it, is of the effence of the crime for which he is dated 
to have been amoved. There are three parts of the charter 
which go to fliew, that the council confiils of all the capital 
burgefles, and th^ the exprefllons " common council" 
and ** capital burgefles," are fynonymous, viz, i. ** ca- 
«* pital burgefles being the conmion council.**— It is not 
•* capital burgefles being of the common council.*' 2. If 
a capital burgefs die, or is removed, a new one is to be 
chofen, *« by the reft of the council, or the greater part of 
•* them.'* 3. The paflage mentioned by Mr. Lawrence^ 
relative to the meeting or convocation. But ftill all thofe 
paflages and exprefllons are ambiguous. They aflbrd a 
llrong inference in point of language. But are they fufli- 
cient in this charter to conftitute a common council com- 
C 182 ] pofed of all the capital burgeflTes ? I think, not, becaufe the 
charter refers to a previous known conftitution. The 
council might be created by prefcription, or a former char- 
ter, to which this charter refers. If fo, Ae conftitution 
of the council by fuch prefcription, or previous charter, 
Ihould have been fet fortli. It would be difficult to main- 
tain an aftion on this, as a falfe return, if the council, by 
the charter, confifts of a part only, for the return does not 
fay that the council is conftituted by the charter.» — As to 
the cauife ftated for the amotion, there is a great diflercnce 
between a charge as the ground of disfranchifement, and 
an indinment. In criminal profecutions, technical forms 
are eftabliflied, and ought to be followed. If, in an' indi£t« 
ment, you fay that -^^. forged, and caufed to be forged, the 
proof of either faft will fupport the indiftment ; but to 
lay that he forged, or caufed to be forged, would be bad. 
This, being determined, muft be adhered to. But fuch. 
nicety is not required in accufations againft a corporator ia 
a corporate court. There fubftantial certainty is all that is 
neceflary *, and, in the prefcnt cafe, tliere U no doubt but 



the intent is charged as part of the crime, and fufficient 
notice is alleged to have been given to Raymond to prepare 
to anfwer it. 

WiLLES, Jttßice^ of the fame opinion on both points 
ftated by Lord Mansfield. 

AsHHURST, Jußicey of the fame opinion on the point 
of uncertainty concerning the conftituent members of the 

BuLLER, Jußiccy alfo of the fame opinion on that point. — 
He faid nothing on the other. 

Judgment, that the return be quaflied^ and a peremp- 
tory mandamus iflue [19]. 



The King 

[19] The returns in the cafes of 
Francis Fane, John Luther, and feveral 
Others, (fupra p. 144. 154.) were 
qualhed» on )i motion made for chat 
purpofe, immediately after the decifion 
of the prefent cafe. It was dated» on 
the part of the profecutors, that, by 
the returns in thole cafes where the dif* 
franchifement had been for non-reii« 
dence, the prefcriptive ncceffity of re- 
fidence only applied to the council, and, 
IS it was not diredUy averred that the 

profecutors were of the cotindl, the 
nou'^reficlence might be no oifence in 
them. — LotA Mansßeld (dixA, there was 
no getdng over the obje£iion, and that 
the averment, that, fince the charter, 
the council had confided of the mayor 
and capital burgeffes (/i), was not iuf- 
ficient, as it did not appear that all the 
fixteen came to be of the council, 
which before the charter was dated to 
confid only of eleven. 

{a) Supra, p. 15 1. 

HoLFORD againß Hatch* 

'T^HIS was an aftion of covenant, for rent in arrear, 
-■• brought againft the defendant as afFignee of one Sa««- 
ders. The declaration ftated, (in the common form,) that 
the plaintiff demifed to Saunders for feven years, by virtue 
whereof he entered and was poffeffed, and that afterwards, 
all the eßatey right j title, and intereß, of Saunders, in the 
premifes, came to the defendant, by aßgnment thereof, by 
virtue whereof he entered and was poffeffed, and that, 
after the affignment, rent had become due, which the de- 
fendant had not paid. The defendant pleaded, that all the 
eftate, right, title, and intereft, of Saunders in the pre- 
mifes, did not come to him by affignment thereof in man- 
ner and form as the plaintiff nad alleged. 

On the trial, it appeared, that the defendant was in pof- 
feiEon of the premifes during the time when the rent in 
arrear became due, but that, by the deed under which he 
held, they were conveyed to him, by Saunders, for a day, 
or fome days Icfs than the original term, and that he had 
adually furrcndcrcd them before the a^ion was brought. 

N % ^mc 

C 183 ] 

Saturday I 
8th May. 
A landlord 
cannot main- 
tain an a£lion 
of covenant, 
for rent, a- 
gaind an un- 


Some receipts alfo were produced for rent which had bccA 

paid by the defendant to the plaintiff, and which run 

Hol FORD thus: " Received of Saunders by the hands of Hatch^ 
againft Upon this evidence, it was contended, at the trial, 

Hatch« which came on before Lord Mansfield, at the Sittings for 
Mlddlefexy in laft Hilary Term; i. That, in point of law, 
a pcrfon holding of the firft leflee, by an under-leafe, Hkc 
the prcfent, is not liable to be fued by the original Icflbr, 
on the covenant for rent contained in the original leafe ; 
1. That the fa<3: put in iflue on the record, viz. that a I! 
the eftate, fjJ't*. of Saufiders came to the defendant, was 
not proved. 

A verdiÖ was found for the plaintiff, but Lord Mans- 
field f.ived the points made by the defendant's counfel, for 
the opinion of the court. Accordingly, in Hilary Term, 
(Thurfday^ the 4th of February,) Davenport obtained a rule 
to (hew caufc why the verdiä Ihould not be fet afide, and 
a nonfuit entered. He -cited Poultney v. Holmes (r), Crujoe 
V. Bugby (j), and Hare v. Cator [t), 
C 1 84 ] Ciufc was fliewn, on the Thurfday following, (the 1 1 th 

of Fe}>ruary.) The Solicitor General, for the plaintiff. — 
Dunning and Davenport, for the defendant. 

For the plaintiff, it was contended, i . That the covenant 
for rent being one of thofe which run with the land, every 
perfon who takes under the original leafe is liable to it. 
To this purpofe, the defendant, although he had not 
ftritUy taken the whole of the firft leffee's intereft in point 
of duration, was to be confidered as his affignee. All that 
had been determined by the cafe of Crufoe v. Bugby, was 
only, til at a leafe by the original leffee, for a ihorter time 
than his own, was not fuch an affignment as wt)uld pro- 
duce a forfeiture, under a covenant not to affign (//). 
Many modes in which the intereft may be transferred, 
though not affignmcnts within the meaning of fuch a cove- 
nant, are conlidered as afiignments, with refpeö: to the 
covenants which run with the land. A devifec^ an execu- 
tor, an affigncc under the bankrupt laws, or one who pur- 
chafes tlie term from the Iheriff under an execution, arc 
alugnces in law, to the effc6l of being liable to covenants 
for rent, l^c, altliough the transfer to them does not 
amount to a forfeiture under a covenant not to affign [20]. 


(>•) M, 7 (?. 3. at .V. Pr. Before («) S, P. Kinnerßey v. Orpe^ fu- 

Pratt t Ch. J 1^1* 1 •S'/*'. 405. pva^ 56. 

(j) C. B,^. J 1 G\ 3. 3 Wilf. 234. [20] This point, which was taken 

Since rcporied 2 BhukjL 766. for granted on thi^ argument, atid by 

(/) B, R, E, 18 G. 3. [f 58]. Fidi the court in Cf^oe v. Bugbj, according 

infra, Note (21), p. 184. to H"i!/hn*i report of the judgment io 

[t 5^] Since reported, Co^vp. y66^ 


The landlord is entitled to look for the rent to the perfon | y^y^ 
in pofleffion, and ought not to be driven to the neccflity of ^ .' 

finding out the original leflee, and bringing his adtion [Iolford 
againft him. Poulteney v. Holmes does not apply to this again ft 
cafe, for the queftion there was only, whether a parol Hatch. 
agreement by the original leflee, to transfer the remaining 
intereft in a term of more than three years, when there 
was only a year and a half to run, referving the rent to 
himfelf, not to the reverfioner, v/as void within the meaning 
of the ftatute of frauds (v). Hare v. Cator [21] was de- 
termined on the ground that the defendant was charged 
for the whole rent, and as aflignee of all the premifes,' 
when, on the evidence, it appeared, that only part of them 
had been afligned ; whereas, in the prefent cafe, the whole 
premifes had been made over. 2. That, as to the fccond 
point, it went merely to the fon?i of the ifliie ; but, if the C ^85 ] 
queftion of law was in favour of the plaintift', it was 
enough for him to prove the fubßauce^ viz, that the defend- 
ant had enough of the term transferred to him, to make 
him liable, under the covenant, for the rent demanded by 
the aftion. On this head Pope v. Skynner («;), and a cafe 
put in the text of Littleton (.v), were, it was faid, in point. 
In the firft, in an a6lion of replevin, the defendant having 
avowed that he had taken the plaintiff's cattle damage fea^ 
fatity the plaintiff pleaded, in bar, that A, being feifcd of 
a houfe and land to which common in the locus in quo was 
appendant, had dcmifed the fame to him on the 30th of 
March^ to hold from the 25 th oi March y tsfr. and the de- 
fendant traverfed the leafe modo et forma ^ upon which iffuc 
being taken, and the jury having found a leafe made on 
the 25 th of March y to hold from thence next enfuing^ the 


that cafe (3 Wilf, 237), has been fincc defendant. — Lord Mansfield in de- 

very much agitated, in Denvy Lr^/Jfe of livering the opinion of the court in fa- 

^arlZtanhopeyV ,SkeggSyl\z\Geo,i,\t^'\, vour of the defendant, faid, that the 

(1;) 29 Car, 2. r. 3. §1,2, 3. cafe in Crokt did not apply, and that 

[21] Hare v. Cator was argued, 0|> the cbjeftion was unanfwerable. 
^caferefervcd, by Mönvj for the plain- (ay) Cam, Scacc, T, \z Jac^ I« 

tiff, who relied on Broome v. Hoare, Hob. 72. 
I Cro, 633. and by Da'venport for the (x) % 483. Co. LittL 281. a> ^. 

[0^] In Roey Lefee of Hunter y v. Gal- good ; and that under fuch a provifo, 

liersy B, R, M, 28 Geo, 3. On a fpecial in cafe of a bankruptcy, and commif- 

verdia, a provifo,— that a leafe (hould fion, the leafe Ihall be avoided, and 

become void, upon the leffee's com- the leffor may rc-cntcr. 2 Term 

initong an aft of bankruptcy and being Rep, 133. 
found a bankrupt,— was held to be 


1 770« court thought that this was not the fame Icafe [22], and 

. - - J yet gave judgment for the plaintiff, becaufe the ft/hflance of 

HoYfokd the iflue was, whether the plaintiff had fuch a leafc as by 

againft fpyce thereof he might ufe the common at the time {y). 

^ATpH. The cafe put by Littleton is equally ftrong, for he there 
fuppofes the demandant in a writ of entry in cafu provifo^ 
to count of an alienation in fee made by tlic tenant in 
dower, and the tenant to plead that he did not alien modo 
et forma y £5*<r. and the jury, (on ifTue being joined,) to find 
an alienation //; tail^ or pur auter v/V, and then fays, that 
although the alienation found would not be in manner, 
fcfr. yet the demandant fhould recover. 

On the other fide, it was infilled, i. That the cafe of 
Crufoe V. Bugby was in point. There is not a better known 
diilinftion in the law than that between an afTignee and an 
under-tenant. Only alBgnees of the whole term, whether 
by aBual aflTignment, or by devife, fale under an execution, 
iifc. are liable to the covenants for rent, tsTr. for, if there 
is a reverfion of a day referved by the immediate leflbr, 
there is no privity between the under-tenant and the firfl 
leffor. The plaintiff fcems to have acknowledged this, by 
the form of the receipts he has given for the rent, which 
t 1 86 ] has been paid to him by the defendant in order to fave the 
circuity of an intervening payment to Saunders, While 
the defendant continued in pofleffion, the plaintiff might 
have diftrained upon him for the rent then due, but as he 
has permitted him to quit the premifes without ufing that 
procefs, he cannot now fubftitute this aöion of covenant 
in its place. Even a court of equity would not affifl in a 
cafe like this, as appears by two cafes mentioned in Bacou^% 
Ahr, Title Leafe (2), and reported in Vernon^ vi%. Sparkes 
V. Smith (0), and Pilkington v. Skalier {b). 2. That, by 
the iffue, the plaintiff had afHrmed that the whole of Saun-- 
4er*s eftatc, isfc. had come to the defendant, but the proof 
was, that only part of the term had been conveyed. Surely 
this proof can as little fupport fuch an iffue, as evidence of 
only part of the premifes having been affigned, which was 
the cafe of Hare v. Cator. The only allegation confonant 


[22] One of the variances mentioned " Jayy^* had been fuppofed to exclude, 

\iy Hobart is, that the leafe pleaded was SLwd/rom henceforth^ or ^* from the date,^* 

exclufi<ve^ and that found by the jury to include the day. 
inclufi^ve, of the 25th of March. This {y) Vide Bnflo^-w v. Wright , E. 

may tnercforc be added to the feries of 21 Geo. 3. Infra^ p. 665. 
calcs enumerated by Lord Mans- («) Vol. iii. 389. 
FIELD in his argument in Pugby. the \a) Cane. M. 1692. 2 Fern. 275. 
Duke of Leeds (•) in which ** from the \b) Cane. T. 1700, 2 Fern. 374. 

(•), Mentioned y«/rÄ, p. 53, Note [15], 




to the truth of the prefent cafe would have been, " You 1 7/0. 
^ have been in pofleflion under Saundersy and thereby be- \_ _ - ^ 
" came liable for the rent, which accrued during your Hol ford 
•* pofleflion," but, if the plaintifi^ had ftated his demand againft 
in that manner, it would have been demurred to. If an Hatch, 
under-tenant were to pay the rent to the original leflbr, hp 
could not plead that payment in bar to an ad^ion by his im- 
mediate landlord, nor fet it off^, becaufe there might be 
mutual accounts between the original leflbr and leflee, and 
tlie former might have been, at the time of the payment 
made to him, indebted, on the balance, to the latter. 

BuLLER, Jußice^ put diis cafe: — Suppofe a leafe for 
21 years, and that the reverfioner aliens his revcrfion in 
parts, v/z. for 40 years immediately, to one, and in re- 
mainder in fee, to another. By the covenant for rent, it 
is to be paid by the leflfee and his aßgHsj to the leflbr and 
iis ajjigns* Now could not the aflignee of the reverfion 
for 40 years, which is only part of the original leflbr's 
intereft, maintain an aftion on the covenant ? — To this 
It was anfwered, that the cafes were not parallel, for that, 
in the cafe put, there was no middle man to whom the 
leflee could be anfwerable. That, to make them corre- ' 

fpond, the privity between the original leflee and leflbr in 
jthe cafe before the court muft: be annihilated. — Buller, 
Jußice^ then obferved, that, in the cafe he had fuppofed, 
that privity was not at an end, for that the original leflbr 
would ft ill remain liable to the tenant, under a covenant 
to repair, fjJ'r. 

Lord Mansfield, — It is fit that we fliould look into the [ 187 ] 
authorities ; therefore let the cafe ftand over. 

The court were underftood to be for fome time divided, 
and judgment was not given till this day, when Lord 
Mansfield delivered their unanimous opinion, as follows : 

Lord Mansfield, — This is an aftion of covenant by a 
Jeffor againft an ^nder-lejfeey and the fingle queftion is, 
whether the aftion can be maintained againft him, as 
Ibeing, fubflantially^ an ajpgrtee. For fome time, we had 
' great douots ; we have bellowed a great deal of confidera- 
^ion on the fubjeft, and looked fully into the books, and 
it is clearly fettled, (and is agreeable to the text of Little^ 
iorij) that the aftion cannot be maintained, unlefs againft 
an aflignee of the whole term. 

The rule made abfolute [f 59], 

[t 59] The foilowing cafe has been term, againft the defendant as aflignee 

flncc determined : of the leflbr, for not finding, provid- 

„ _ , * 1 ing> affigning, and allowing, proper 

Palmer a;. Edwards and Another, ^^^j ^^^ ^^^^^ ^^ repairing the de- 

B, R. E. 23 Gio. 3. jjyCe^j premifes. 

This was an adlion of covenant The declaration ftated, that one ^i- 

brought by the plainuflfas affignee of a chard Edivards, being, on the 30th of 








September 17511 pof- 
feäed ,amongother things , 
of certain premifcs par- 
ticularly fpccificd, for 
a long term of years 
then and yet to come, 
did, on that day and 
year, demife to one Edmonjon^ his ex- 
ecutors, adminillrators and afligns, 
among other things, the faid fpeciiied 
prcmifes, to hold from Lady-day then 
next enfuing, for 30 years, at a cer- 
tain yearly rent in the indenture of de- 
mife mentioned; that Edmonfcn, for 
himfcif, his executors, adminillrators 
and afiigns, by the faid indenture cove- 
nanted, prorr.iffd, graiucd and agreed, 
that they would, at their own proper 
cells and charges, (wood and timber 
excepted,) repair and keep in repair 
during the faid term, atncng ether things, 
the faid fpccified prcmiies ; and that 
Richard Edivards, for himfcif, his ex- 
ecutors, adminillrators aud afligns, by 
the faid indenture, covenanted, pro- 
mifed, granted and a^',reed, that they 
would find, provide, aflign, and allow, 
proper wood and timber, when they 
fhould be required, for repairing, 
anvong other things, the faid i'pecified 
prcmifes, during the faid term; that, 
on the faid day and year, Edmon/cn, by 
virtue of the faid indenture, entered on 
all the laid demifed premifcs, and, af- 
terwards, to iJL'it, on the Zlll of 'Janu- 
ary 1752, aj/7gned, transferred, and 
fet over, by indenture, to one If^amcr, 
his executors, adminifrrators and ailigns, 
the faid fpecif;cd prcmifes, to hold from 
Lady-day then next cnfuii^g, for 30 
year? ; and that W'ar/icr, by virtue of 
the faid lad- mentioned indenture, en- 
tered into the f«iJ demifed premiiei. 
Then a title was derived, by many 
mean aßlgnments, from iramer to the 
plaintiff, and it was alfo fhevvn, that 
Richard Ed^^ards^s reverfionary leafe- 
hold intereil came, by afilgnment, to 
the defendants ; and then a breach of 
the covenant for finding and allowing 
timber, fince the refpedive titles of 
the plaintiff and defendants had ac- 
crued, wasaifigned. 

The defendants pleaded, 1. that 
Edmonfin did not aflign, transfer, and 

fet over, to ffWner, the foid, &c» 
(fpecifying the fame premifcs fpecified 
in the declaration,) in manner and form, 
^'C. 2, 3, 4. three other pleas on 
which no quefUon arofe, 5. perfor- 

Iffue was joined on each of thofe 
pleas, and, the caufe came on for trial 
hcfoTcEyre, Baron, at the Lent Aflizes 
for Huntiugdonßire, 23 Geo, 3. 

Upon the evidence, it appeared, that 
the original leafe was of certain tene-. 
ments, including tliofe in the declara- 
tion fpecified, at a rent of 149/. 7/. ic^^ 
and that it contained, among other co- 
venants, one, on the part oi Edmonfon»^ 
to repair ; and another, on the part of 
Ed-wards i to find timber, as flatcd in 
the declaration. 

The indenture between E;^.mo:ifon and 
Warner, reciting the leafe, witnclTcd, 
that Edmcvfcn afiigneJ all and fingular>. 
l^c. {'vix, that part of the prcmifes 
fpecified in the declaration,) to War- 
ner^ his executors, adminif- 
trators, and afligns, (fubjcft [ 18S ] 
to the exceptions, rcfcr- 
vations, and agreements aforcfaid,) 
at the yearly rerit of 26/. zs, payahle 
to Edmcnjon, Then there was a cove- 
nant, by IVarner, for himfcif, his exe- 
cutors, adminillrators, and afligns, to 
repair at their own proper colls and, 
charges, (wood and timber excepted,) 
and a power to Edmonfon to re-enter oa 
non payment of rent. There were 
alfo feveral other covenants, which 
were admitted 2,1 the bar to be differ- 
ent from thofe in the original leafe. 

A verdict having been found for the 
plainülF on all the iflues, a new trial 
was moved for, on two grounds; i. 
that the rent was referved to Edmonßni^ 
2. that the covenants in the indenture 
between Edmonjln and Warner were not 
the fame with thcfe in the original leafe. 

Partridge, in fupport of the verdiö, 
contended, that, wherever the whole 
inlcreil is conveyed, it is an aflignmcqt, 
and that, in fuch cafe, the afligncc 
f.ands exactly in the place of the leflce, 
an^ is entitled to the benefit of all the 
covenants on the part of the leffor. 

Coir, and Da^uenport, for the de- 
fendant?, relied on rouheney v. Holmes,^ 



and infifted, that this waa not an aflign- the revcrfion, to main- j j>jn^ 

ment^becaufetherentwasnotrefervedto tain an adUon on the , ' , 

the firft leflbr, bat to Edmonfon^ and be- covenants in the ongi- ^j ' 

caafe a power of re-entry was given to nal leafe, againil FaU "^^'f^*'^ 

Edmonfin. That thofe circumllances mer^ and that the re- «g^^nlt 

conilitutcd Edmon/on the landlord of medy is mutual, fo as "ATch« 

Warner i and that, if an afUon of to entitle Palmer to the 

covenant were to be brought by the advantage of the original covenants on 

defendants, againft Palmer y for not re- the part of the le/Tor. The cafe of 

pairing, he might plead that he was P^ulteney v. Holmes does not come up 

not affignee. to this. That cafe only determinccU 

Lord Mansfield, and Jfihurfi, Jüi\icc, that what cannot be fupportcd as an 

abfent. aflignment, (hall be good as an under- 

ßuller, Juftice, — It may be a quef. leafe, againft the party granting it. 
tion, whether the new covenants in the IVilles, Juftice, concurred in the 

conveyance from Edmonjon to Warner fame opinion. 
arc good. On tliis I give no opinion. The rule difcharged. 

But certainly that was an affignmcnt. Vide Eaton v. Jaques, M. 21 Geo, 3. 

There was no reverfion left. There Infra, 45 c. Walker v. Reeves, M. 2j 

is no doubt but there is fufficient pri- Geo, 3. Infra, 461. Note [i], WaJ- 

yixy for the defendants, as affignccs of bam v. Marloiv, B, R, M. 25 Geo. 3, 

Th E Ki N G agahjl Pu G II , Sh Ma?. 

THIS was a cafe referved upon an indi(Sment on the Iftheinha- 
ftatute of 3 or 4 Ami. c. iS. § 5. againft the defend- I'*""^*^.*" 
^nt, as high conftable of ^he hundred of Batt/e, in the cnYoycd anim- 
county of Sajex, for not obeying a warrant of the juftices memorial ex- 
in quarter felfions, by which he was commanded to ifTue cmption from 
his precepts to the petty conftables, head-boroughs, and f^f^ving on ju- 
tything men, of and belonging to the rcfpedivc boroughs * noTliabU to be 
of the faid hundred of Battle^ for the purpofe of preparing fummoned, 
lifts of perfons qualified to ferve on juries, ^c. and for under any of 
not returning fuch lifts to the faid juftices, at the MichaeU ^**^ «hflwent 
mas fcflions following. The indiftment had been removed tirc"to*iurors 
by certiorari from the quarter feffions, and was tried at the 
laft Aflizes for Sttßx. The cafe fet forth;— -That the de- 
fendant had been legally appointed to his office ; that a 
warrant, (ftated in h^c verha^) ifllied at the Midfummer 
feffions-, that he was duly fervcd with it, and neglcÖed 
and failed to ifTue forth his precepts, ^c. That William I. 
when he founded the abhej^ granted, among other things, 
•* quod habeat curiam fuam per otnnia^ isf regiam Uhertatem 
•* Üf coufuetudinem trailandi defuis rebus vel negotiis, isfjufr 
** titiam per fe teriendam,'* fanftuary for felons, freedom 
from all epifcopal jurifdiöions, is^c* That Henry I. by two 
£everal charters, (part of which were fet forthj^) confirmed [ 189 1 
the privileges granted by William I. That Henry VIII. 

• ^. 


1 77Q. granted the manor and hundred of Battle^Abbey to Sir An^ 
1^ - - J thony Brown^ his heirs and afligns, with power to hold fuch 
The King views of frank-pledge, court-leet, hundred-courts, law- 
againft days, fokcs, returns of writs, cognizances of pleas, and 
PuGU. other rights, jurifdiftions, powers, liberties, ^c. as the 
late abbot, or any of his predeceflbrs had held and enjoyed, 
in right of the faid abbey. That under this grant, the 
manor and hundred had come by various mefne aflign- 
ments to the prefent proprietor Sir Whißler Webßer^ Bart. 
That the defendant lived within the manor. That the 
manor and hundred are co-extenfive. That there had been 
a court of record regularly held within die manor till the 
year 1744. That, by immemorial cuftom, the refiants 
within the hundred had not been returned to ferve on juries 
out of the hundred ; and that no precepts had ever been 
iflued, from time immemorial, by the high conftable of 
Battle. That no proof was given of any allowance of this 
privilege. That the town of Battle is not a town corporatCjj 
that has power by charter to hold feffions of gaol-delivery, 
or feffions of the peace for fuch town.— The defendant 
was found guilty, fubjeft to the opinion of the court on the 
following queftion, v'vz. ** Whether the above charters and 
•* immemorial cuftom would exempt the inhabitants of 
•* the hundred of Battle from ferving on juries, and the 
•* high conftable from ifluing his precepts ?• or. Whether 
** the feveral afts of parliament paffed, and now in force, 
•* concerning jurors, or fome, or one of them, have not 
•* taken away fuch exemption^" 

The cafe was argued on Wednefday^ the 5 th of May,-~^ 
Burrelly for the profecution.— jP^f^Aflrwi, for the defend- 

In fupport of the profecution, it was contended, that 
the ftatutes of 4 55* 5 »^. £5* JI/. r. 24. (0 7 ^ 8 ^^ 
3. r. 32. (</) and 3 £5" 4 Ann. c. 18. {e) arc general^ 
without any exception as to liberties or local exemptions, 
unlefs with regard to cities, boroughs and towns corpo- 
rate (/), and, therefore, they muft be confidered as having 
taken away the privilege claimed by the inhabitants of the 
hundred of Battle^ if it ever had a legal exiftence. This 
conftru6lion of thofe ftatutes was, it was faid, confonant 
to the interpretation which had obtained in refpeft to the 
ftatute of bridges and highways {g)^ for the words in the 
C 190 ] fourth fedlion of that ftatute, having given authority " ta 
*« tax and fet every inhabitant," Lord Coke exprefsly fays, 
in his commentary upon it, that, ** by thcfe words, aB 
•* privileges of exemptions or difcharges whatfoercr from 

** con- 

(0 § 15. »6. .(/) 4 y 5 /T. y M. r. 24. § 17. 

(d) § 4. U) zz Hen. 8. <. 5. 


<* contribution for the reparation of decayed bridges, (if 177Q. 
** any were,) are taken away," and even adds, " although i _ _ j 
" the exemption were by aft of parliament (A)." The King 

For the defendant, it was infifted, that it is a general again ft 
rule, that an affinnative ftatute does riot take away a Puch« 
cuflom (/). Many particular decifions which eftablifti and 
confirm that rule, might be cited. For example, by tlic 
ftatute of I Ed. 3.^. 2. cap. 2. it is enaöed, " That every 
** man that hath any wood within the foreft may take 
•* houfe-bote and hay-Dote in his faid wood, fo that he doth 
** the fame by the view of the forefters ;" and yet, notwith- 
ftanding that reftriftion, a prefcription to cut down tim- 
ber trees in the party's own woods, within a foreft, nvith^ 
out the view of the foreßer^ was held good, in a cafe in 
16 isV/z. ftated 4 Inß. 297. (h). The paflage in Lord 
Coke\ commentary on the ftatute of bridges does not ap- 
ply, becaufe the words of that ftatute are much broader^ 
and more comprehenfive, than thofe of the different afts 
relative to jurors. The principal objeft of the ftatute of 
4 Ü" 5 W. iff M. (in that part of it which has been re- 
lied on,) was to revive that of 16 tf 17 Car. 2. c. 3. with 
regard to the qualification of jurors in point of eftatc. 
The purpofe of thofe of 7 t5* 8 JF. 3. c. 32. and 4 Ann. 
c. 3. was to provide a method of giving the ftieriff authen- 
tic information of the perfons qualified \ but, from a care- 
ful penifal of thofe different ftatutcs, it would appear, 
that it was never intended thereby to fubjeft perfons, who 
had a right of exemption to ferve. Such exemptions are 
very common. Tenants in ancient demefne " cannot be 
** empannelled to appear at Weßminßer or elfewhere in any 
*^ other court upon any inqueft or trial of any caufe (/).'* 
So clergymen, (Beecher^s Cafe) (m), coroners, officers of 
the foreft, oflficers in the army, and other officers, and 
minifters belonging to the King, are not liable to be fum- 
moned on juries ; Bacon^s Ahr. Title Juries {n) ; and by the 
ftatute of 52 Hen. 3. c. 14. though it is provided, that, 
in particular cafes, perfons privileged by charters of ex- 
emption, fliall, notwithftanding, be fwom on juries, yet 
their general liberty and exemption is faved, which affords t '91 1 
a ftrong proof of the antiquity of this fort of privilege. 

Burrely in reply, obferved, that, if it were to be held 
tliat the exemption claimed was well founded, ftill that 
was not a fufficient juftification of the defendant, becaufe « 

his office, in the execution of the warrant, was only mi- 

nifterial ; 

if?) 2 Inß, 704. [m) C. B. M. 19. Elix. 4 Leon. 190« 

(1) Co. Litf, 11^. a. \n) Vol. iii. /. 261. cites DaU^ 

{k) Alfo Co. Litt. 115. a. Sher. 121. Trials fer fait 86. 
4/»/?. 269. 


niftcrial [23] ; but Pechkam having anfwcred, that the point 
of the exemption was the only queftion meant to be tried 
^hc kiNO ^"^ brought on upon the cafe refcrvcd, this fcemcd to be 
«gain (I acquiefced in. 

FuGH. The court took time to confider, and now Lord Mans- 

field delivered their opinion, as follows : 

Lord Mansfield, — Wc have confidercd this matter very 
fully, and wc arc all of opinion, that llie Ratutcs relative 
to juries, being affirmative, do not take away the prior 
exemption 5 and {o is the text of lAttktotu 

A verdi£l of acquittal entered for the defendant. 

[23] Plde Rix v. Pnci'val, B. R. H. 16 ^ 17 Car. 2. HarJr. 389. Sid. 243. 

SmJ\ ^^^ y^i^o againß the Justices of Gj^ou- 


The jufticcs (\^ ^n application for a vum^amus to compel the jullices 

are l>ound ro KJ ^f ^j^^ Qijartcr Seflions in G/oNce/fer/hire to receive 

B«a?3cainlt*an ^" appeal from an order of removal, it appeared, from the 

order of le- affulavits on which the rule was obuiined, that the examl- 

moval if offcr- nation of die pauper was taken in Anguß; the order of 

ed at the next removal dated the 1 2th of November following ; and the 

thou£h'noii'cc ^cifions, where the appeal was tendered, held on the I2tli 

of ippeal hut of January in the enfuing year ; that no notice of appeal had 

been given. been fervedy (for which tlie reafon alFigned was, that the 

appellants had not been able to get their witnclles rjady, 

till it was too late to give fuch notice) ; that the court liaci 

been moved to receive the appeal, and adjourn the confi- 

deration of it till the following Selhons, and had refufcd. 

Dunning now fhewed caufe. — Morris for the profecutor. 

The court were clearly of opinion, that the juftice^ 

ought to have received the appeal. 

TJie rule made abfolute. 

rJefdty; Alsop and Another agahtß Brown, 

xith May. 
If a bond for 'THIS was an aftion on a bond, to the truftces under 
the payment of ^ Samuel Ullfon^s will, in which the defemlant pleaded 
hioney has ^ bankruptcy, as was done in the cafe of Alfop v. Price {p\\ 
bcforc^a bank. ^^^ here, the defendant was the principal, 'the caufe had 
ruptcy. pay- been tried before Bulllr, Jußke^ and a fpecial cafe re- 

iqtpt of i II tereft fcrved , 

by the bank- 
rupt aftci the certificate, may perhaps render him liable to be futd upon it. 

(0) Vide/upray p. 160. 


ferved, which wavS this day fpoken to, hj Davenport ^ for I 770. 
the plaintifKi, and Morgan^ for the defendant* It was 1 _ _ | 
ftated in the cafe, that intereft had been paid on the bond, Alsof 
after the defendant had obtained his certificate, but it did again ft 
not appear whether fuch intereft was paid by the bankrupt, Bjlown* 
or one of the fureties. Lord Mansfield faid, that, if the 
intereft was not paid by the bankrupt, there was no 
tjueftion, but that if it was, it would be an admiflion by 
him, that the principal was then due, and he might be 
liable as on a now contrail [24.] The cafe was ordered to 
ft and over, till ajjidnvits fliould be laid before the court, 
ftating by whom the intereft was paid ; but I believe it 
was never brought on again, 

[24] Vid: If'ehfler v. Bannifler^ E. v. Hllkes, M. 21 Geo. 3. Ift/ra, 519« 

20 GVö. 3. I/i/rü, 393, and ff'\//ie [f 60]. 

If 60] V:di^ alfo, Befl V. Barher, B. R. M. 23 do. 3. ckcd/ufra p. tou 

Note [I 42]. 

The King agalnß the Justices of the Eaft 
Riding of Yorkshire. 

'THIS was an application for a mandamus to compel ^f» fr««« ^^ 

^ the court of Oiiarter Seflions to receive an appeal ^»"^"cc J>e. 
' n, X c y twcen the »a* 

agamft an order of removal. ^i^^ j^ ^^^^^ 

The facls of the cafe were thefe : The order of removal » pauper has 
had been made by the two jufticcs on the 2 2d of Sept ember ^ bjcn removed 
but the pauper was not removed till die 5tli of October. *">* **'V*ifer 
Hully (tlie place to which the pauper had been removed \^^^ aic^^hcW 
from Whlthy^ is fixty miles from Northallertofi^ where the there is not 
Seliions began on the 6th of OSobcr. At that Seflions, time «o lotig« 
no appeal was entered, and, at the Epiphany SeJhons fol- *" aPrJf^l a* 
lowing, (wJiich began on the 12th of *' Jatitiary^) the parifti j^^jj j,^^^. 
ch:ir^',ed having otTered an appeal, the juftices refufed to diatcly liibfe- 
hear it, thinking thcmfelvts bound by the words of the qucnr to tlic 
ftatute of 13 £5* 14 Car. 2. c. 12. § 2. which fays, that J.^"»"^*'» *^« 
perfons aggrieved may appeal to the juftices of peace /„f^^n'^^areto 
" at the f/ext Q^i-irtcr Seifions." be confuJei-ed 

Lee Ihewed caufe, and infifted, that the fuccecding z% the next 
SciFions had no jurifdidlion ; that an appeal might have /#"" within 
been entered at the Muhaelmas Seffions, on the fecond or *''«j^*»"^« o' 
third day, for that no notice is necefiary in order to entitle ^^^^ j^^ ^^^ 
the parties to enter their appeal {p)y although, if there has the juftices 
not been any, or not reafonable notice, the juftices are will be corn- 
bound to adjourn the hearing till the cnfuing Seffions (<7). J^ji^^^^ju^ ^'^ 

^^ peilatfiiche.1. 
fuing fefTion*. 
(/) Rex V. the Ji^jlias ofGkuctßir- (f) 9 C/p. I. r, 7. § 8, 
fijirit/ufra 191 • 


The court faid, that, by " next Seßons^* the ftatute of 
Car, 2. muft have meant the next poffible Seflions, and 
The King that, here, it was impoflible for the appellants to lodge 
again il the their appeal at the Michaelmas Seflions. 
Justices of The rule made abfolnte [(t>]. 


[t:^] But^in Rex v. the Jußices of at the diflance only of 20 miles from 

Herefordjhire\ where the order was the place to which he was removed, 

dated 1 8th ApriU the pauper removed the court refufed a mandamus, 3 Terrti 

I9th> and the Seflions held the 22d> Rep. 504. 

15th May. 

In an indI6l« 
ment, the 
words " in 
** manner and 
** form/oi/nv-' 

•« /fly,*' do not 
bind the party 
^o recite the in - 
Arument, S^c. 
merbatim^ nor 
formal omif- 
fiont or mif- 
takes fatal.— 
If a clerk of 
the peace in 
drawing an in- 
diAment intro- 
duce unnecef- 
fary recitals, 
the court will 
order him to 
pay the cx- 
pence thereby 

•C X94] 

The King againft May. 

¥ N an indiftment for perjury tried before Buller, Jußlcfj 
^ at the Sittings at Weßminßer^ in laft Hilary "Term {r\ 
the perjury was laid to have been committed by the 
defendant, in giving his evidence as profecutor, upon an 
indiftment againft A. for an affault. The defendant 
having been found guilty, on Wednefday the 3d of February 
1779, Coiuper moved for a rule to ihew caufe, why the 
verdict (hould not be fet afide, and judgment of acquittal 
entered upon tlic following ground : The original indiö- 
ment, in ftating the injury which the defendant (then the 
profecutor) had received, faid, ** whereby his life was 
" greatly defpaired of J* The prefent indiftment^ after 
mentioning that there had been an indiftment preferred 
by the defendant, went on thUs ; ** which indiBment was 
** prefented in manner and form following^ that is to fay.** 
Then the indiftment was fet forth in ha:c verba, but, in 
the paflage above-mentioned, the word ** defpcnred*^ was 
omitted. It was admitted not to have been neceffary that 
the former inditlment ihould be recited, but it was * con- 
tended, that tlie profecutor, by the words ** manner and 
** form following, that is to fay ^^ had undertaken to recite it, 
and that, having done fo, he was bound to fet it forth 
verbatim. This objeftion had been made at the trial, but 
was over-ruled by the Judge, who faid, that the word, 
*• tenor^' had fo itri£l and technical a meaning as to make 
It neceffary to recite verbatim, but that, by the expreflion 
in this cafe, nothing more than 2i fubßantial recital was 
requifite, and that the variance here was only in matter 
oi form. He mentioned a cafe where the variance was 
** undertook* in the recital of an affidavit, in an indict- 
ment, inftead of ^* underßoodi^ in which, on a motion for 
a new trial, although the introduftory words were ** tenor 

" and 

(;•) Thiirj'day^ the 28th of January, 1 779. 


«< and fffeBy^ the court determined, that the variance was 
not fatal [25]. 

A rule to (hew caufc was granted, but was afterwards 
dropped, and the defendant was, this day, called upon 
his recognizance, in order that judgment might be pro- 
nounced againft him. 

The indiiäment, whicl\ had been removed by certiorari^ 
from the Quarter Seffions for Middlefexy appearing to be 
of an exorbitant length, ftatii^ all the continuances on the 
former profecution, fe*r. which is rendered unneceflary by 
the exprefs words of the ftatute of 23 Geo. 2. r. 11. § i* 
the court ordered, that it fhould be referred to the mailer 
to fee what part of the record was unneceflary, and that 
the clerk of the peace fliould pay the expencc incurred by 
fuch unneceflary part [26]. 



The King 

[15] Af. 15 G. 2. Rex V- Beech. 
The dißindtion laid down by the court, 
in that cafe, was, that, where (he 
mifrecited word is in itfelf a word, 
tkoogh not intelligible with the con- 
text, as, ** Ä/r," for *» beir^** there 
the variance, according to the deci- 
fions, is fatal, but not if the mutilated 
word does not make any other word 
(t 61]. ^. therefore, as to the cafe 
of Tur-viJ V. Aynßworth^ (B, R. H, 
I Geo. 2. 2 Lmrd Rajm. 15 15. 2 Str. 
787.) where, in an a^ion, the word 
** jiufirialtA^* being ufed ia Aating the 
name of the South Sea Company, inflead 
cf " Juftraltay* the Variance was held 
to be fetal [O]. 

[26] LordMANSFiELD defired the 
bar wonid take a note of this, that it 
might be publicly known. — A cafe, 
in (bme relpeds fimilar, occurred in 
this term, when I happened not to be 
in court, a//«. Rex v. Bury^ but I have 
fccn a very accurate note of it. It 
came on upon a rule to (hew caufe. 

why an attachment fhould not ifloe 
againft the defendant, who was clerk 
of afltze on the Norfolk circuit, for 
not obeying a writ of certiorari to re- 
move an indidment for murder, and a 
fpecial verdidl founded upon it, (Rex 
v. Borfhwick, T, 19 G. 3. In/ra, p- 
207.) The defendant iniifted, that he 
had a right to retain the record till he 
(hould be paid his fees for drawing, in- 
grofßng, c?V. • which the attorney for 
the pnfoner refufed to do, on the 
ground of their being exorbittnt. 
However, on the attorney's under- 
taking to pay as much as (hould, on a, 
reference to the Mafter, be reported 
to be due, the record 
was returned int» court, [ 195 } 
upon which the rule was 
discharged. Lord Mansfibld (kid 
he (hould be very unwiliing to deter- 
mine that a clerk of aflize has a lien 
on the records of the court for his fees, 
for that he forefaw great inconvenience 
from fuch a dofirine. 

[t 61] The cafe of Rex v. Beech 
has been fince reported, Conjop, 229. 

[1^] The introdudion of an un- 
meaning word in the recital of any in- 
ftrumenc, in a declaration, (as of 
*' if" in fetting forth the (hcrifF's 
precept to the returning officer, in aa 

adbion for bribery) is not a fatal vari- 
ance. King V. Fippet, B. R, E. 26 Geo* 
3. I Term Rep. 235. Fide Infra» 
Brißtrw V. Upright , 665. 

• ViiieJ^iiAins v. Carmichael, H. 1 9 
G, 3. Stipra, p. 101. 104. 

The End of Easter Term 19 George III. 

C >9« 3 



Court of KING'S BENCH, 

I N 

Trinity Term, 

In the Nineteenth Year of t;hc Reign of George III, 

Äe* Duncan dgatnß Thomas. 

If a warrantor ^X^HIS was a rule to fliew caufc why a bond and war* 
tttorney to I rant of attorney to confcfs judgment in this courts 

BMnt has b(M~ fliould not be delivered up, as having been obtained 

obtained by ^^ fraud, and while the party was in cuftody under procefs 
fraud, the out of the court of Exchequer. Judgment had not been, 
court will or- in fa£b, entered up, nor any proceedings had, on the 
fvered*u^ ^*' '^"^ * ^"^ '^ ^^^' therefore, urged, that the court could 
upon motion "^^ entertain the motion, there being no inftance in which 
for that pur- it had ever extended its equitable jurifdiöion fo far. The 
poft, although rule however was made abfolute ; Buller, Jußicey ob- 
DO proceedings ferving that the court had the fame jurifdioion as if the 
tpon U^ *' judgment had actually been entered up. If it were other- 
wife, he faid, the confequences would be extremely incon- 
venient. The judgment might be entered up in the vaca- 
tion, and the defendant taken in execution, before any 
application could be made to the court. 
Lord Mansfield, — abfent. 
Howorth^ for the plaintiff. «-»Jlfi^rrAf, for the defendant. 



Haselar agatnß Ansell. 

Sth June. 

A CTION on a bond. — Pleay judgment recovered.— q . 
'**' Repllcatioriy nul tiel record; which was delivered with plead, &c. in 
a rule to return the paper-book in four days. The paper- four days, if 
book was not offered to be returned till the morning of ^^^ defendant 
the fifth day, before the opening of the office, when the f„*^o%in''jf tu. 
plaintiff refufed to receive it, and immediately entered up fjfij, day the 
judgment, and took out execution. Upon this, the de* plaintiff may 
fendant obtained a rule to fliew caufe, why the judgment, fign judgment* 
and fubfequent proceedings, ihould not oe fet afide for 

Baidwitty in fupport of the rule, relied on the authority 
of the cafe of Oxley y. Bridge (a), as direftlv in point, to 
(hew that, by an equitable extenfion of the four days, thcj 
are fuppofed to continue till the office open on the morn- 
ing of the fifth. 

Lane J on the other fide, infifted, that the judgment 
was entered up regularly, and confidently with the rules 
and praöice of the court, and faid, that in Ox/ey v. Bridge 
there muft have been fome particular circumftances which 
diftinguifhed that cafe from the prefent. Lord Mans« 
FIELD having a(ked the mailer what the praftice was, he 
faid that, ftriöly, the plaintiff was entitled to fign judg- 
ment, if the paper-book was not returned on the evening 
of the fourth day, although it is a very common indulg- 
ence to allow him till the next morning. 

Lanff on being afked by his Lordihip, admitted, that ^ 

the plaintiff would not have been injured by waiting till the 
next day, and Mr. Baldwin on the other hand, could not 
fay the defendant had merits. 

Lord Mansfield was inclined to believe that Ox/ey v» 
Bridge diffi^red in circumftances from this cafe ; and was 
clear that a judgment entered up agreeably to. what the 
mafter had certified to be, in ftridinefs, the pra^ice of 
the court, could not be fet afide for irregularity. 

The rule difcnarged. 

(a) £.19 Geo. 3, Sufra, f. 6j» 

[ 198] 

Williams agatnß Frith. Thurfday, 

lodi June« 

ACTION on an attorney's bill; judgment by default; After an attor- ' 
^^ and writ of enquiry executed. Rule, (on the motion ney'» bill has 
of Dunningy) to (hew caufe, why the vcrdift Ihould not ^*j^° ^^""^^ 

no application 
lias been made to have it taxed by the mafter, the defendant will not be permitted to 
queftion the reafonablen «fs of the ittm before a jur> .—On notice to execute a writ of 
enquiry at a certain bour^ the party is not tied down to the cxaft time fixed by thQ 

Vol.. I. o 


1 770, be fct afidc for irregularity. The irregularity complained 

1^ J of was, that notice was given to attend the execution of 

Williams the writ of enquiry between ten and twelve o'clock, that 

again II the defendant and his witnefles did not attend till twelve, 

fftiTH. and that after the hour was elapfed, and they were gone, 

the writ was executed. It was alfo fworn, as a ground on 

merits, that the amount given by the verditSb, which was 

75/. was 30/. more than was really due. 

Lord Mansfield,— The client has a fummary way of 
trying the reafonablenefs of the items in an attorney's billji - 
by a reference to the mailer. If he waive that methodj 
and put the attorney to his aftion, I never fufFcr him to gp 
into a difcuflion of the iUmsy at the trial of the caufc 
ff 62] [(Ö*]. In this cafe, it was clearly a trick of the 
defendant's attorney to leave the place immediately after 
the hour was pafled. When notice is given for the execu- 
tion of a writ of enquiry at a certain hour, it is never un- 
derftood that the time is to be fcrupuloufly adhered to. 
The fheriflF may have prior bufinefs which may laft beyond 
the hour. 

The rule difchargcd, 

[f 62] FiJ^ the next cafe. any time before verdift, or judgment, 

[t^] But an attorney's bill may be unlefs the money has been paid. Sbinv 
taxedj after adlion brought, and at v. Pickering, B. R, M. 30 Geo. 3, 

Sjunc' Hooper agahjfi Till and his Wife. 

Thcfamepoint 'T^HIS was alfo an aftion on an attorney's bill, in which 
the^fore^o'n ^^^^^ ^^^ ^^" judgment by default, and a writ of 

cafc/'^^^*"^ enquiry executed. On Saturday, the 5th of JurUy Mingay 
moved for a rule to ftiew caufc, why the verdift (hould 
not be fet afide, and the bill referred to the mafter to be . 
taxed. The motion was made on an affidavit, that the 
flieriff would not hear evidence to impeach the reafonable- 
nefs of the charges. 

I-iord Mansfield was abfent. 
C 199 ] BujLLER, Jußicey read a note of a cafe, where Lord 

Mansfield, and the court, had refufed to permit a bill 
to be. referred to the mafter to be taxed, becaufe it had 
been read in evidence at Nift Prhis, on a notice of fet-ofF, 
in a caufe where the attorney was defendant, which (hewed 
that it had been delivered a month [f 63] \ and they held 


It 63] It fecms to have been there the part of the defendant, who was an 

taken^or granted, that an attorney attorney, for a rule to (hew caufe, why 

cannot let ol- his bill till a month after the proceedings Ihould not be (laid tUl 

I i!f u J^^*"^^ ' ^"^ ^^^ contrary his bill (hould be paid, or till a month 

was new by the court, in E. 23 Geo. from the delivery of it (hould expire, 

y in a cafe oi Martin v. lVind^r, For that he might be eifabled to fct it oiF, 

in mat caie. Law having moved, on the court held, that though an attorney 



that it was then too late to difpute the amount of the 
items. However, in the prefent cafe, a rule to (hew caufe 
was granted. 

Sytveßer now Ihcwed caufe, and mentioned the cafe of 
Clarke v. Taylor^ as dircöly in point (r). 

Lord Mansfield, — ^The bill of an attorney cannot be 
taxed at the trial of an aftion brought upon it, nor after 
verdift. If there has been an account fettled between the 
attorney and his client, the bill fliall never afterwards be 
taxed as of courfe : particular cafes may be pointed out ; 
the client may, by affidavit, (hew that the bufinefs charged 
was never performed, or that the charges are fraudulent ; 
but, if the bufinefs was really done, the delay of the 
defendant for more than a month in objefting to the 
quantum is an admiflion that he thinks that reafonable. 

^rhe rule difcharged [i]. 




cannot bring an a6lion on his bill till it 
has been delivered a month, that cir- 
cuinftance is not neceffary to enable 
him to fet it off; that he mull not pro- 
duce it, at the trial, by furprize, but 
that it is fufHcient, in fuch cafe, to de- 
fiver it time enough for the plaintiff to 
]^ve it taxed before the trial. Upon 
hearing this opinion of the court, Laiu 
withdrew his motion as unneceffary. • 
(f) C. 5. £. 1 1 G. 2. Barnes^ 4to. 
edit. 124. 

[i] This day, another point con- 
ceming the taxation of attorney's bills 
was moved in court, but as I have not 
preferved the name of the cafe, I have 
not mentioned it in the text. The cir- 
cumftances were thefe : BaU<win moved 
that the mader might be directed to 
tax thofe articles in an attorney's bill 
which related to conveyancing and par- 
liamentary bufinefs, the reft bemg for 
the management of caufes in this court. 
Lord Mansfield faid, there was no 
doubt but the mafter might tax tbi 
njuhole ; that he recollefted a cafe, where 
the fees paid to a prodlor for bufinefs 
done in the ecclefiaftical court made 
part of the bill, and it was determined, 
tkat, as the n^ifole hill had been referred 
to the mafter, he might tax that part 
of it. 

Nofa. If the lubole bill is for convey^ 
ancingi the mafter cannot tax it. B» 

R, M, 12 G. 2. Jmn, Barnes 4to. 
edit. 41, 42. 

I will add here another cafe ftill, on 
this fubjed, though I did not hear it in 
court, when it was moved, which was 
in M. 19 G. 3. It was the cafe of 
Dixon V. Plant. On the la ft day of 
that term. Dunning moved that Dixon's 
bill as agent in town for Plant» a country 
attorney, might be referred to the 
mafter to be taxed. fTilles, 
jffßburß,zndBuller,]u(iicts, [ 200 ] 
(Lord Mansfield having 
left the court before the motion, was 
made,) were inclined to think that the 
bill was not taxable by the Mafter, the 
ad of 12 G. 2. c. 13. § 6. having 
enadcd that 2 G. 2. r. 23. § 23. (^), 
for referring attorneys' bills, " fliould 
•' not extend to any bill due from any 
'* attorney or folicitor, to any other at-. 
*' tomey, folicitor, or clerk in court.'* . 
There is a cafe in ff'il/on» where a fin- . 
gle judge of this court having made an . 
order to refer an agent's bill, and the 
mafter not having obeyed it, the court ^ 
was applied to, and held that the order 
was irregular; the mafter declaring that 
he had never taxed a bill for agency [e) . 
However, at the Sittings at GuildbaJU 
after M. 19 G. 3. Btdler, Juftice, wko 
that day fat for Lord Mansfield, in- 
formed the bar, that, upon enquiry, 
it had been found to be the praäice of 


(//) Made perpetual by 30 G. 2. 
19. § 7i* 


B.R.E. 23 G.2, Anon. 1 mi/: 

o % 





the court of Common 
Pleas, confirmed by a 
cafe decided in that 
court, to make orders 
for the taxation of a- 
gent's bills, and he 
read a note of the cafe 
which had been lent him by GouU^ 
Juitice« and was as follows : 

*' Ex parti Bearcroftt an Attorney— 
*' In E. 7 Geo. 3. Davy^ Serjeant, 
^* moved that the bill of Xjtrjiin an at- 
*' tomey, agent for Bcarcroß^ (hould 
*' be referred to be taxed, and faid, 
*' though it X^as not within the ftatute 
•* of z Geo» 2. by reafon of that of 12 
•* Geo, 2. yet that it might be taxed 
** under the general jurißidion of the 
•* court, and under 3 Jac, i. r. 7. 
*♦ He made his motion on this general 
<' authority, without any affidavit. 
•* Notes, Serjeant, objeftcd, that there 
•* never had been an inftance of fuch 
•* taxation of an agent's bill. But the 
*' court thought proper to grant a rule 
•* to (hew caufe. — v . 7 Geo. 3. Nares 
** (hewed caufe> and obferved that the 
*' ftatute of 12 Geo. 2. provides, that 
*• 2 Geo, 2, (hall not extend, &c, and 
•* therefore it is not necelfary for an 
** agent to deliver a bill before he brings 
•* an aftioix; the reafon of which he 
*' took to be that it was not looked upon 
*' to be fttbjed to taxation. I'he (la- 
** tute of 3 Jac. I. requires bills to be 
•' delivered by attornies to their maflers 
*' or clients. They are. fuppofed ig- 
*' norant of the fleps in a caufe, and 
•* the due charges. The agent, he 
*' Oud, who.does the buiinefs in town 
^' is entitled to the fees, unlefs there is 
" a contrary (lipulation between him 
** and the country attorney, Davj, 
** contra, faid that he did not apply on 
V the ground of the flatute of 2 Geo, 

'f 2. but on the pradlice of the court, 
'• In 3 Jac, I . there is no diredion ^ 
*' to taxation^ yet an attorney's bill was 
*' certainly taxable before z Geo, 2. 
*^ The 12 Geo. 2. (hews it to have been 
'• thought that z Geo, 2. cxtjndtd tq 
f' agents* bills and properly rcilrained 
" it, (as various things in it are not ap- 
f plicablebet^yeen attornies and agcnts^j 
«* fuch as words at length, i3c.) leaving 
'* the cafe between them as it ilood be- 
" fore.— The court was of opinion that 
<« the bill (hould be taxed, and that 
<^ they could ordcl* it under the general 
^' authority of the court, that it might 
*• be feen that only due charges were 
f* made. — After the court had declared 
** this opinion, Barnes, the fecondary;, 
f« faid he remembered, before 2 Geo. 2, 
^* applications made to judges at their 
f« chambers to refer agents bills to be 
«' taxed^ and that it was frequently 
*' done upon the country attorney'^ 
f bringing the fees charged into court. 
«« —The rule was made abfolute, but 
'* with the condition that Bear croft 
V (hould bring the money m to court («) . ' ' 
Buller^ Juftice, then faid, that, on 
being made acquainted with this cafe, 
he had conferred with fTilles^ and Jßf- 
burß, JulHces, and that they were all 
three of opinion, that Dixon's bill (hould 
be referred ; that the pradtict of all the 
courts ought to be uniform; tLat 
queflions on bills of this fort would be 
niuch better underftood and fettled by 
themader, than by a jury or judge, at 
Niß Prius, Upon this, the counfel iii 
the caufe agreed» that the bill (houl4 
be taxed by con(ent, the defendant 
bringing into court the fum remaining 
due« on the amount of the plaintiff's 
claim, and that what (hould be dedudted,^ 
if any thing, (hould be afterwards rci 
paid to him. 

{a) Mf . Ju(tice Gould was fo oblig- his note, from which copy the aboy^ 
yA£ as to fumKh me with a copy of is printed^ 


. 1779- 

"WiGGLESwoÄTä againft Dallison and ' ■ ■■ -^ 
Another. j:SÄ 

HnHIS was an aftion of trefpafs for mowing, carrying Acuftomthtt 
-* away, and converting to the defendant's own ufe, the tenants, whc- 
fcorn of the plaintiff, growing in a field called Hibaidßow ^^^^a\^^I^^\ 
Leys^ in the parifh of Hibaldßow^ in the county of Liticoh. have**the 
The defendant Dallifou pleaded liberum tenementum^ and the way.going 
other defendant jufUfied as his fervant. The plaintiff r^- crop after th« 
plied^ that true it was that the locus ih quo was thc.clofe, «xpi«tioirof 
foil and freehold of Dallifon ; but,— after ftating that one j, gooj^** 
Ifabella Dallifon deceafed, (being tenant for life,) and Dal" 
iifotr^ the reverfioner in fee, made a leafe on the 2d of 
March 1753^ ^y which the faid Ifabella demifed, and the 
faid Dallifon confirmed^ the faid clofe to the plaintiff, his 
executors, adminiftrators, and afligns, for 2 1 years, to be 
tompatedyro»t the iß of Afay 1755» and that the plaintiff, 
by virtue thereof, entered and continued in pofielfion, till 
the end of the faid term of 21 years, — he pleaded a cuflom, 
in the following words, viz, " That, within the parifh of 
" Hibaldßowy there now* is, and from time whereof the 
*^ memory of man is not to the contrary, there hath been 
*< a certain ancient and laudable cuftom, there ufed and 
*^* approved of, that is to fay, that every tenant and farmer 
** of any lands within the fame parifh, for any term of 
** years which hath expired on the firß day of May in any 
*• year, hath been ufed and accuftomed, and of right 
" ought to have, take, and enjoy, to his own ufe, and 
** to reap, cut, and carry away, when ripe and fit to be 
** reaped, and taken away, his way^^oing crop, that is to 
^< fay, all the corn growing upon the faid lands which hath 
*• before the expiration of fuch term been fown by fuch 
^' tenant, upon any part of fuch lands, not exceeding a täi- 
^^ finable quantity thereof in proportion to the refidue of fuch 
" lands, according to the courfe and ufage of hußandry in the 
" fame par ifb^ and which hath been left flanding and grow-» 
^< ing upon fuch lands at the expiration of fuch term of 
** years." He then flated that, in the year 1775, he 
fowed with corn part of the faid clofe, being a reafonablt 
part in proportion to the refidue thereof, according to the 
courfe and ufage of hufbandry in the faid parifh, and that 
the com produced and raifed by fuch fowing of the com 
fo fown as aforefaid, being the corn in the declaration 
mentioned, at the end of the term, and at the time of the 
trefpafs committed, was flanding and growing in the faid [ 202 3 
clofe, the faid time not exceeding a reafonable time for the. 
fame to (land, in order to ripen and become fit to be 
jreapedj and that he was during all that time^ lawfully pof- 

O 3 fefled 


177Q» fcffed of the faid com, as his abfolute property, by virtue 

1^ - - f of the cuftom. — ^The defendant, in his rejoinder^ denied 

Wiggles- the exiftence of any fuch cuftom, and concluded to the 

WORTH country. — The caufe was tried before Eyre, Barony at the 

againft hft Aflizes for L'tncolnßire^ when the jury found the cuf- 

Dalluon. torn, in the words of the replication, 

Baldwin moved in arreft of judgment, that fuch a cuf- 
tom was repugnant to the terms of the deed, and, there- 
fore, though it might be good in refpeft to parole leafes, 
could not have a legal exiftence in the cafe of leafes by 
deed. He relied on Trumper v. Carwardiney before Yates, 
Jußic€ (y*), the circumftances of which cafe were thefe : 

** The plaintiflF had been leflee under the corporation of 
•* Hereford^ for a term of 21 years, which expired on the 
** 4th of December 1 767. In the leafe, there was no cove- 
** nant that the tenant ihould have his off-going crop. In 
•* the feed-time before the expiration of the term, he 
** fowed the fallow with wheat. The fucceeding tenant 
«« obftrufted him in cutting the wheat, when it became 
•* ripe, and cut and houfed it himfelf, for his own ufe. 
** Upon this the plaintiff brought an aftion on the cafe, 
" and declared on a cuftom in Herefordfljtre for tenants 
•* who quit their farms at Chriflmasy or CandlemoSy to reap 
" the corn fown the preceding autumn. Yates, Jußicey 
" held that the cuftom could not legally extend to leffees 
*« by deed, though it might prevail, by implication, in the 
*^ cafe of parole agreements. That, in the cafe of a leafe 
•* by deed, both parties are bound by the exprefs agree- 
•* ments contained in it, as that the term fhall expire at 
** fuch a day, {5*f. and therefore all implication is taken 
•* away. That if fuch a cuftom could be fet up, the fta- 
** tute of frauds would be thereby fuperfeded in Hereford^ 
^* Jbire [i]. Accordingly the plaintift* did not recover on 
** the cuftom, although on another count in trover in the 
•* fame declaration, he had a verdi<ä." 
A rule to ihew caufe was granted. 
E 203 ] The cafe was argued on Tuefday the 8th of Jr/nej hy Hilly 

Serjeant, Chambrey and Dayrelly for the plaintiff, and C///?, 
Baldkviny Balguyy and GoUghy for the defendants \ when 
three objeftions were made on the part of the defendant, 
viz. I. That the cuftom was unreafonable. 2. That it 
was uncertain. 3. That, (as had been contended on mov- 
ing for the rule,) it was repugnant to the deed under 
which the plaintiff had held. 


(/) At tlje fummer Affizes for He- extended in feme degree for half a 

reftrdjhire 1 769. year longer by fuch a cuftom, it might 

[ I ] ^' This argument fcems more be faid that this would be repugnant tp 

applicable to parole leafes» becaufe if the ftatute of frauds. 
A parole leafe for three years could be 


For the plaintiff it was urged, 'i. That it was not an I77Q. 
unreafonable cuftom, becaufe without an exprefs agreement, 1 j\ 

or fuch a cuftom as this, there could be no crop the laft Wig g lis- 
year of a term, for the tenant would not fow, if he could worth 
not reap, and the landlord would not have a right to enter againft 
till the expiration of the term* That it was for the advan- Dallison« 
tag9 of the public, as much as cuftoms for turning a 
plough, or drying nets, on another perfon's land, which 
had been held to be good (^), That it bore a great analogy 
to the right of emblements, and was founded on the fame 
principle, namely, the encouragement of agriculture. It 
was not prejudicial to any one \ not to the landlord, be- 
caufe without it his land muft be unemployed and unpro- 
duöive for a whole fcafon ; nor to the fucceeding tenant, 
becaufe he would have his turn at the end of his term* 

2. That it was fufficicntly certain^ by the reference to the 
refidue of the lands not fown, and to the courfe and ufage 
of hufbandry in the parifli. This is as much certainty as 

the nature of the fubjeft will admit of, for, if it had been ' 

that fo many acres might be fown and reaped, that would 
have been incompatible with thofe variations in the propor- 
tion of ploughed land, which arife, at different times» 
from circumftances in the courfe of cultivation and huf- 
bandry. Reafonable is an epithet which fufHciently qualifies 
the extent of cuftoms, and is generally ufed in pleading 
them \ as with regard to cuftomary fines paid to the lord 
of a manor, eftovers prefcribed for by a party to be taken 
for the ufe of his houfe, ^c. In the pafe of Bemnngton 
V. Taylor J reported in Lutwyche (Ä), where the defendant, 
in an a£tion of trefpafs, had pleaded a right to diftrain for 
twelve pence for ftallage, due by prefcription, for the land 
near every ftall in a niir, and, on a niotion in arrcft of 
judgment, it was objeÖed, that the prefcription was uncer- 
tain, and therefore void, the quantity of land not being 
afcertained, the court held it to be certain enough, becaufe 
the quantity was to be afcertained by the common ufage of 
the fair. In all fuch cafes, whether the quantity or amount [ ^04 J 
is in truth reafonable or not, is for the jury to decide. 

3. That the circumftances of the plaintifPs leafe in this 
cafe having been by deed, made no difference. There 
was no agreement contained in the deed, that the defendant 
would depart from the cuftom, although the parties muft 
have known of it when the leafe was executed. He did 
not claim under any parole contraft exprefs or implied, 
and therefore the argument of repugnancy did not apply ; 
and the Nift Prius cafe, which had been cited, went upon 
miftaken reafoning. i//7/, Serjeant, admitted, tliat he 
knew of no inftance in the Reports, of a fimilar cuftom to 


ii) Fide Davij 32. 6. (h) C. B. E. oxT. izW. 3. z Lut<w. 1517' »5*9- 



1 770» ^'^' ^^ ^^ ^^^^ ^^ freehold property, but he faid, there 

I //^* ^ ^er^ feveral with regard to copyholds that went much far- 

WiGGLES- ^^ > ^^ ^^ cited Eaßcourt v. Weehes (i), where a cuftom, 

WORTH that the executors and adminiftrators of ererr cuftomary 

againft tenant for life, if he (hould die between Chrtßmas and 

Dallison* Ladyda^y ihould hold over till the Michaelmas following, 

is flated on the pleadings [2] ; and no objeäion taken to it 

on the argument of the cafe. 

For the defendant were cited, Grantham v. Haiuley 
(I) [3]; — JVkite V. Sayer (/), in which laft cafe, a cuftom 
for a lord of a manor " to have common of pafture in all 
•« the lands of his tenants for life or years,** which had 
been pleaded in juftification of a trcfpafs in the land of a 
tenant for years, was held to be void and againft law, for 
that fuch a privilege is contrary to the leafe, being part of 
the thing demifed, and different from a prefcription to 
have a hcriot from every lefTee for life, becaufe that is only 
collateral (/;/)•, — A cafe relied on by Houghton, Juftice, in 
IVhite V. Sayer, in which he faid the court had decided 
that a cuftom for leffees for years to have half a year after 
the end of their term, to remove their utenfils, was void, 
as being againft law ) Startup v. Dodderidge (/i), where the 
court refufed to grant a prohibition, on tlie fuggeftion of a 
tmdus *' to pay, upon requeft, at the rate of two Ihillings 
** for every pound of the improved yearly rent or value of 
C 205 ] ** the land," becaufe the yearly rent or value was variable 
and uncertain ; — Nay/or, qui tarn, v. Scott (e>), where a cuf- 
tom having been- found by a jury, " that every houfe- 
** keeper in the parifli of Wakefield having a child bom 
** there, ftiould, at the time when the mother was churched, 
** or at the ufual time after her delivery when (he ftiould be 
•* churched, pay ten pence to the vicar," the court, on a motion 
in arreft of judgment, determined that the cuftom was void, 
being, i. uncertain, becaufe the ufual time for women ta 
be churched was not alleged [4], 7. unreafonable, becaufe 
it obliged the huftiand to pay if the woman was not 
churched at all, or if fhe removed from the parifh, or died 
before the time of churching ; — Carieton v. Brightwcll {p\ 
where the defendant, on a bill for tithes, fet up a modus^ 

" thai 

(/) 7*.. 10 ^^.3. I Lutiv. 799. 801. words, if the quelHon of law was in 

[2] It is found by the fpecial ver- his favour, 
«üa, the adlion being ejeament. (/) B. R. M. 19 Jac. 1. Palm, 21 1, 

(i) T. 13 Jac. I. Ho^. 132. (m) Cites 21 H. 7. 14. 

[3] That cafe, if at all applicable, («) £. 4 Jfitt. 2 Ld. Raym. 115g» 

feems to mc to make for the plaintiff. 2 Salk. 657. 1 Mod. 60. 
It is curious in one refped, 'viz, that (0) E. 2 Geo, 2. 2 Ld. Raym, l^$S* 
the queltion was brought on in an ac- [4] In that cafe the cudom, as fug- 

tion of debt on a common bond condi- gefted, did not refer to the ufage of 

tioned for the payment of 20 /. to the the parifh. 

plaintiff if a certain crop of corn did (/) Coftc* T, 1728. 2 f. fT. 462ft 
of right belong to him -, or, ia other 


«« that the inhabitants of fuch a tenement, with the lands j 770. 
«« ufually enjoyed therewith, fhoiUd pay fuch a fum for ^ L _^ 
•• tithe corn," and it was held by the Mafter of the Rolls, Wiggles- 
to be void for uncertainty; — Harrifon v. &harp (y), where worth 
a modtis^ <* that, when any of the inclofed pafiures in a againft 
•* certain vill were ploughed and fown with com or grain Dalluok* 
<< of any kind, or laid for meadow and mown and made 
** into hay, tithes in kind were paid to tlie redtor, but 
•* when eaten and depaftured, then the occupier paid to 
" the vicar one fliilling in the pound of the yearly rent or 
•* value thereof, and no more, upon fome day after JMf- 
*< chaebnasy yearly," was held void, on the authority of 
Startup V. Dcdderidge ; — Wilkes v. Broadbent (r), where the 
court of Common Pleas^ and afterwards, on error brought, 
the court of Kings Benchy held a cuftom found by verdift, 
•* for the lord of a manor, or the tenants of his collieries 
•^ who had funk pits, to throw the earth and coals on the 
<* laud tuar fuch pitSy fuch land being cuftomary tenement 
•* and part of the manor, there to continue, and to lay 
<* and continue wood there for the neceflary ufe of the 
<* pits, and to take coals fo laid, away in carts, and to 
<' bum and make into cinders coals laid there, at their 
" pleafure," to be void, becaufe, (among other reafons,) 
the word near was too vague and uncertain ; — Oland v. 
Burdwick (j), where a feme, copyholder durante viduitate, 
having fowed the land, and then married, it was determined 
that the lord iliould have the com, upon the principle, 
that, when the intereft in land is determined by the aft of 
the party, he fliall not have the crop 5 — An anonymous cafe [ 3to6 ] 
in Moore (/), where it was held, that a cuftom, " that lef- 
«' fee for years ihould hold for half a year over his term,** 
was bad ; — Roe, Lejfee of Bret^ v. Lees (u\ where, in an 
cjeönicnt to recover a farm of about fixty acres, of which 
fifty-one were inclofed, and nine lay in certain open fields^ 
a fpecial cafe was referved, which ftated a cuftom, *< that, 
<< when a tenant took a farm in which there was any open 
** field, more or lefs, for an uncertain term, it was confi- 
** dered as a holding from three years to three years," and 
though the court decided againft the cuftom on other 
grounds, yet, by their rcafoning, it clearly appeared that 
they thought it void for uncertainty, becaufe the quantity 
of open ground was not afcertained, and one rood might 
determine the tenure of 100 acres of land inclofed. Be- 
fidcs the above authorities (5), the cafe before Yates, Juf-* 


(f) r. 1724. Bunb. 174. (») C. B, H. 18 Geo. y Since le* 

(r) B. R. £. 18 Geo, 2. 2 Str. ported, 2 Blackfl. wji. 

kl224. [5 J 4 Co. CI. ^ I Roll. Ahr. c6t. 

^ (/) B. R. H. J7 EL Cro. Ehz.^60. pi. 9. ^ Co. Littl. 55. were alfo cited 

^ C0. 1 16. for the general puiciples concerning 

(/) H. 3 Ed. 6. Moon 8. //. 27. cuftoms and emblements. 


I77Q» ''^'* ^^* much relied on. It was admitted, that, in cafes 
^ — _ J where the ufual crop of the country is fuch, that it cannot 
Wiggles- come to maturity in one year, a right to hold over after the 

WORTH end of the term, in a parol demife, may be raifed by im- 

againft plication ; as where fafFron is cultivated, (in Cambridge- 
Dallison. JhirtfJ liquorice, (near Pontefra^y) or tobacco, (which for- 
merly ufed to be planted in Lincoln/hire J ; but it was con- 
tended, that, in fuch cafes, a leafe by deed would preclude 
fuch implication, as the parties mud be fuppofed to have 
defcribed all the circumftances relative to the intended te- 
nure, in the written inftrument. Such a cuftom as that 
fet up, in the prefcnt cafe, could not, it was faid, be of 
fuflScient antiquity with refpeft to leafes by deed, as in the 
time of Richard the Firft, and, long afterwards, tenants 
had no permanent intereft in their lands ; or, if there could 
be fuch a cuftom, the plaintiiPs leafe could not be within 
it, becaufe the cuftom muft have applied to the firft of 
May old ftile, and this leafe was made and commenced 
after the alteration was introduced by 24 Geo, 2. r. 23. [6J. 
The court took time to confider ; and this day. Lord 
Mansfield delivered their opinion, as follows : 

E 207 ] Lord Mansfield, — ^We have thought of this cafe, and 

we are all of opinion, that the cuftom is good. It is juft, 
for he who fows, ought to reap, and it is for the benefit 
and encouragement of agriculture. It is, indeed, againft 
the general rule of law concerning emblements, which 
are not allowed to tenants who know when their term is 
' to ceafe, becaufe it is held to be their fault or folly to have 

fown, when they knew their intereft would expire before 
they could reap. But the cuftom of a particular place 
may reftify what otherwife would be imprudence or folly. 
The leafe being by deed does not vary the cafe. The cuf- 
tom does not alter or contradift the agreement in the leafe ; 
it only fuperadds a right which is confequential to the tak- 
ing, as a heriot may be due by cuftom, although not men- 
tioned in the grant or leafe [7]. 

The rule difcharged [8]. 

[6] The new ft}'le commenced the i ft the cuftom of moft countries would en- 

of January 1753. But, if this argu- title the IcfFee to enter upon the arable 

ment were admitted in its full extent, at Candlemas (2d Feb.) to prepare for 

no cuftom could exift where a certain the Lent corn, ivitbout any /pedal 'words 
day of the month made pan of it," as . for that furpofe, i, e. in a written agree- 

from the errors in the former method ment for leven years ; for the court 

of computation, the nominal day was were fpeaking of fuch an agreement, 

continually deviadng, by degrees, from [8] Judgment was accordingly en- 

the natural day. tered for the plaintiff, upon which a 

[7] Fide Doe v. Snowden, C. B. M. writ of error was brought in the Ex- 

19 Geo, 3. 2 Blackß, 1225. where it is chequer chamber, and the defendant af- 

faid by- the court, that if there is a tak- figned for errors, '* That the cuftom 

ing from ol(l Lady-day, (5th ApriU) ** contained and fct forth, l^c, is a 

** cuftom 



** cuftom void in law, and is contrary 
'' tOy and inconfiflent with, the faid 
** indenture of leafe in the faid repll- 
" cation mentioned." The cafe was 
argued at Serjeants-Inn before the 
Judges of C B. and the Barons of the 
Exchequer, by Balguy for the plaintiff 
in error, and Cbamhre for the defend- 
ant. The objedHon to the reafonable- 
nefs of the cuilom was abandoned. In 
T. 21 G. 3. (27th 7««r 1781,) Lord 

Loughhtyrough delivered 
the unanimous opinion 
of the court o^ Exchequer 
chamber, that the cuf- 
tom was good ; and the 
j udgment was affirmed. 
1^ Fide Lewes v. Har- 
ris, Hereford {\xmmer Affiz. 18 Geo. 3 
or Skynner, Chief Baron, //. Black, 7, 
n (a). Be<van v. Delabay, C. B. £ 
28 Geo, 3. Uid. 5. 




The King againj John Borthwick and f^J^'j^J; 
fixteen Others. 

THIS cafe came on upon a fpecial verdiö, found at the On an india- 

laft Lent Aflizes, for the county of Suffolk^ before >"«««. for mur- 

AsHHURST, Jujlice, on the trial of an indiameHt for find ff ****T^ 

murder. — ^The indiftment fet forth, That^ on the 7th of verdia,'1t?t 

Decetnbety 19 Geo. 3. the prifoners felonioufly, tsfc. upon necefl^ry, in 

one Thomas Nichols made an aflault ; That Borthwick [8] order to afieft 

with a large ftick, which he then held in both • his hands, ^ITfc^iVde 

ftruck the deceafed feveral times, giving him thereby a grec,*^to"ftatc" 

mortal bruife on the head, of which he died the next day ; cither, 1. that 

and that the other prifoners, at the time of the felony and «hey were ac- 

murder by the faid Borthwick committed, felonioufly, isfc. ^"*^*y prcfcnt, 

were prefent^ aiding, abetting, isfc. the faid Borthwick the »618 d'onTbv 

felony and • murder aforefaid, in manner and form afore- them at the 

faid, to commit, " and fo the jurors aforefaid, {fJ'r. fay very time, • 

that the faid John Borthwick^ Edward Barry, i^c. (naming ^^*-j '{^,""2' 

all the others,) him the faid Thomas Nichols, in manner and that^hcy we^ 

form aforefaid, felonioufly, Üfc. did kill and murder." — prefcnt, or, 3. 

One of the perfons indided died before the trial. The «Hat they were 

others pleaded not guilty. — ^The verdift dated. That ®^ ^^'^ '*™e 

Richard Hatton, one of the prifoners, was a midfhipman, fame purfult 

and a non-commiflioned ofl[icer belonging to a tender in the and under the 

government fervice called the Charlotte, lying off Harwich, fame cngage- 

and employed in the faid fervice for imprefllng men for the >"«"*• and ex- 

purpofes of manning his Majcfty's fhips of war. That the ^utuaTdefc 

others were part of the crew of the fame tender, of which and fupport 

lieutenant JVilliam Palmer was then commander, who had with the per 
previoufly received, and then had in his cuftody, a war- 
rant in writing under the hands of the commiflioners for 
executing the office of Lord High Admiral of Great Bri- 
tain, i^c. and under the feal of the oflice of Admiralty. 
That the warrant was in the following words, viz, 


[8] If feveral are indited, J. as giv- 
ing the mortal blow, and the others as 
prefent aiding, ^c, evidence that one 

fon who did 
the faa. 

*[ 208 ] 

of tne others gave the blow, and that 
J, was only prefent, if^c, will maintain 
the indidUnent, i Hale 437, 438. 

lo» CASES i» tRlNlTY TEtlät 

1 770, '* By ^^c Commiffioncrs for executing the office of hofi 

1^ - - J •* High Admiral of Grrat Britain and Ireland^ (^c. and of 
Tbc King *' all his Majefty's Plantations, iffc. In purfuance of his 

againd •* Majefty's order in council, dated, isfc. we do hereby 
BoRTH- « empower and dire£l you to imprefs or caufe to be im-s 

WICK» €t preflcd, fo many feamen and fea-faring men, and per- 
" fons whofe occupations and callings are to work in vef- 
<* fels and boats upon rivers, as you (hall be able, in order 
*' to man his Majefty's fhips, giving unto each man, {o 
" impreflcd, one fliilling for preft money, and in the exe- 
** cution thereof, you are to take care that you do not 
*' demand or receive any money, gratuity, reward, or 
•* other confideration whatfoever, for the fparing any per- 
*^ fon or perfons fit for his Majefty's fervice, or exchang- 
** ing or difcharging any perfon or perfons who may be 
*' imprefled, and alfo that every perfon aBitig under you does 
•* not demand or receive any confideration whatfoever upon 
** the like account, as you will anfwer it at your peril. 
" Thft warrant to continue in force till, Isfc. and, in the 
** due execution thereof, all mayors, fheriffs, juftices of 
** the peace, bailiffs, conftables, headboroughs, and all 
" other his Majefty's officers, and fubjefts, whom it maj^ 
£ 209 ] ** concern, arc hereby required to be aiding and affifting 
•* unto you and thofe employed by you, as they tender his 
*< Majefty's fervice, and will anfwer the contrary at their 
** perils. Given, fafr." [9]. 

That PalmeTy being then the only commiffioned officer 
on board the Charlotte^ and having received information of 
certain fea-faring men being at Ipfivichy in purfuance of 
the faid prefs-warrant, gave verbal orders to Richard Han- 
iofti and the other prifoncrs, to proceed thither, and to 
take fuch perfons as they fliould there find liable to be im- 
prefled. That it is the conftant ufage and invariable cuf- 
tom of the navy, for all commiffioned officers, having in 
their cuftody fuch prefs-warrants, to give verbal orders to 
fuch petty-officers whom they may think fit to employ on 
fuch fervices of impreffing men for his majefty's fervice^ 
the warrant remaining in their own cuftody; and that 
fuch petty-officers ufually aft without any other authority 
than fuch verbal order. That the prefs-warrant wks not 
backed or figned by any magiftrate. That, in confequencc 
of, and conformity to, the verbal orders given by Palmer^ 
Hanton and the other prifoners went to Ipfwichy and hav- 
ing information, that there were certain fea-faring men at 
a publick-houfe in Ipfwich kept by one JViles^ wtent all to* 
gethcr in company to that houfe, between ten and twelve at 


[9] It is obfervablcy that this lyar- pute the execution of it to a commifTion 

tant differs, in feme refpeds» from officer, by an indorfement on the back.. 

that printed by Mr. Juftice Fofter^ par- Foß. Cr. lavw. 156« 
ti&ularly in omitong the power to dc« 


flight. That the gate leading from the ftreet into the yard 1 77g, 
of the houfe was qpetud by the maidfervant of Wiles j to the \ j 

prifoners. That the door being open^ they entered the houfe« The Kino 
That Certain fea-faring men, v/z. Sharpe^ Bennet, and Of" again ft 
^//f, were then fitting drinking in an inner room in the Borth- 
houfe, together with Wiles and one Grimwood. That the >vic|j. 
prifoners entered that inner room wi^h large fticks in their 
hands, fuch as are ufually carried by prefs-gangs, and 
were there informed that Bennet and OJhorne belonged to 
|the BriUiant ftorcftiip in the fervice of government. That 
^hc crews of fuch ftorefliip are paid by the contraftors, and 
pot by government. That no proteöion was produced, or 
offered to be produced, by Bennet and Oßorney or either of 
fhcm, or demanded by the prifoners, or any of them* 
That the prifoners, upon entering the inner room, in- 
formed Sharpe^ Bennet^ OJhorne^ Wilesy and Grimivood, 
that they were come for the purpofe of impreffmg men, and 
jhat Sharpe then drew a knife out of his pocket, and bran- 
difhing it, faid, ** the firß man that hinders me from going 
** home ta my wife and family ^ Til ßiclt him^* and, in that f aio 1 
panner paiTed through the gang, and quitted the room. 
That WileSy 0/borney and Grimwood had no weapons in 
^heir hands, but that Bennet drew a poker out of the fire 
for his defence, and faid " He would not be taken alive ;'* 
and, upon this declaration of Bennet j fome of the prifoners 
attempted to wreft the poker out of his hands ; upon 
which attempt an affray immediately enfucdy and the poker 
was, foon after, taken out of the hands of Bennet, but 
the affray continued, during which Wiles threw down a 
fable then in the room, and extinguifhed the light of the 
candle, which was then burning, ancf feveral blows were 
jgiven. ITiat, during the affray, the deceafed came to the 
4oor of the room, and ftood in the door-way, leaning on 
a walking-flick, which he then had in his hand, and faid 
^ Bennet and 0/borney ** My lads, do as you have done before,** 
(meaning thereby that Bennet and 0/borne fhould refcue 
themfelves Ijy force ;) and that the deceafed then faid, to 
one of the prifoners, ** j^re not you tfhamed to beat a man 
** nuho is down /"' (meaning Wiles). That during the af- 
fray, the deceafed received a blow on the head from one 
of the prifoners, with a large wooden flick (" but from 
^* which of them the jurors are ignorant") and that the 
blow was the caufe of his death. — That, according as the 
court fhould think the killing, ^c. felony and murder, or 
felony and manflaughter, or neither felony and murder nor 
felony and manflaughter, the jurors found the prifoners 
guilty of felony and murder, or of felony and man- 
flaughter, or not guilty. 



I7'"0, ^^^ ^^^^ ^^^ argued, on Wednefday the pth of June^ hf 

y^ f Jones i for the profecution, and Graham^ for the prifoners. 

The Kino Lord Mansfield abfent. 

again ft The counfcl for the profecution came prepared to argue 

BoRTH- the general queftion of the legality of prcfling ; but the 

WICK. court intimated an opinion, that it was unnecefl'ary to agi- 
tate that point in this cafe, as the warrant Hated could not 
authorize a parol delegation of the power veiled in the 
lieutenant, and, indeed, it was admitted by the counfcl 
for the prifoners, that they were trefpaflers. But, as none 
of them could be confidered as more than principals in the 
fccond degree, the jury not having found who it was that 
gave the blow, it was infilled, for the prifoners, that the 
vcrdi£l was defc£live, in not dating them to have been 
prefentj aiding and abetting. To prove that this was cfTen- 
tial, I Hale 438. was cited Rex v. Mejfenger (*y), and Rex 
V. Royce {w). 
t 2^^ ] In anfwer to this, it was obferved, that the technical 

words ** prefent aiding and abetting^* are not neccfTary in a 
fpecial verdi£l, as they are in an indi£lment, and that 
enough was found, for the court to imply, either an aBual 
or a conßruElive prefence. To fhew that the latter was 
fuflicient, a cafe in 3 Ed. 3. Coron. 350. and Lord Dacri% 
Cafey cited in i Hale^ 439. were relied on. 

The court took time to confuier; and Willes, Jußice^ 
now delivered their opinion to the following efFeft. 

WiLLES, Jiißicey — In this cafe, the counfel for the pro- 
fecutor offered to argue the general queftion, whether the 
warrant ftated in the fpecial vercjicl was legal or not. But, 
unlefs the prifoners had a power to execute it, and con- 
duced themfelves l':p».lly in the execution, there is no occa- 
fion for the court to confider that queftion. It was ad- 
mitted by the counfel for the prifoners, that they were not 
ftri^lly juftifiable in the execution of the warrant, and 
therefore were trefpaflers. The court were all of that opi- 
nion, on reading the verdift •, for the authority given by 
the warrant could not be delegated by parol to other per- 
fons. On this ground the court ftopped the counfel in the 
argument of the general queftion, and it is become unne- 
cefiary to confider the degree of guilt which might have 
been imputed to the prifoners, for we are all of opinion 
that the verdid: is fubftantially defeöivc. It is not ex- 
prefsly found that they all were prefent aiding and ajftfling 
when the blow was given, or even when the affray began. 
That either an aBual or a conßruElive prefence was necef- 
fary, to involve the prifoners in the homicide, was rightly 
admitted. But it was contended, i. That enough is 
ftäted to warrant us in implying that all the prifoners were 
oElttqlly prefent the whole time ; 2. That an aäual prefence 

ir^) KeU 70. (w) E. 7 Geo. 3. 4 Burr. 2073. 


is not neceflary, and that, as the prifoners all went together j 77Q, 
on one common illegal defign, that conflituted a conßruElive ^ _ j 
prefence, and would, in law, involve all of them in the ThcKiKc 
fame degree of guilt, i. As to the firft point, in fo penal againft 
^ cafe as this, where the prefence is of the eflbnce of the Borth- 
crime, the court will not prefume it. It is undoubtedly wick. 
true that no technical words are neceflary in a fpecial ver- 
dift. It is not neceflary to fay, in words, that the pri- 
foners were all prefent. If it were ftated that they did 
fome a£l at the timey that would be fufBcient, becaufe the 
court muft then unavoidably fee that they were prefent. 
In Meffenger's Cafcy reported in KelyngCy the judges fay, 
•* where feveral ad^s of force are found to have been a£tually E ^^^ 3 
committed in purfuance of the defign, there is no need to 
find the prifoners to have been aiding and ajftflingy for that 
is only neceflary to be found where the jury find a perfon 
was there amongft them, and find no particular a£k of 
force done by him, but only his prefence." There it is 
neceflary to find he was prefent ** aiding and qfflfting^* (a:). 
Francis's Cafe (y) was much ftronger than the prefent. 
That was an indiftment for a highway robbery. All the 
prifoners were found to be in company together. Francis 
ftruck the money put of Cox's hand, and, upon his oflfer- 
ing to take it up from the ground, they threatened to 
Jcnock out his brains, whereupon he defifted ; and the jury 
further found that the prifoners then and there immediately 
took up the money, and rode oflF with it, and Cox imme- 
diately purfued. To conftitute a highway robbery, a tak- 
ing in the prefence of the perfon robbed is neceflary ; and all 
the judges held that, on that finding, they could not imply 
that the money was taken up in Cox's prefence, and that a 
fpecial verdift cannot be made good by intendment or con- 
ftruäion. In the prefent cafe, it is not found that the pri- 
foners did any aft, during the aflfray, or that they were 
prefent aiding and ajßßing ; and the court cannot intend that 
they were. 2. As to the fecond point, and the authorities 
relied on; in 3 Ed. 3. Cor on. 350. all the- prifoners were 
oBtially prefent. In Lord Dacre's Cafe^ all went with a 
defign to refift every oppofition. In Moore (z) it is Hated, 
that they went under an agreement to kill all who fhould refiß 
thenty and it appears, by that report of the cafe, as well as 
by what is faid in Foßer (0), that they were all afting in 
the fame purfuit at the time when the murder was com- 
mitted. Fo/ler fays, " it was fufficient that, at the inßant 
the faB ivas committedy they were all of the fame party, 
and upon the fame purfuit, and under the fame engage- 
ment and expeftation of mutual defence and fupport with 
thofe that did the faft." In the prefent cafe, as it is not ' 


{x) Kel. 78. (z) 86. 

ly) £. 8 Geo. 2. Str. 1015. Com. {a) 354. 



The Kino 


C 213 ] 

isth June. 

A writ of 
i^tiui rtint 


found that all the prifoners were of the (kme p2»ty, and on 
the fame purfuit» (5*^. when the foB was committed, as it is 
not found who gave the blow, or who was prefent, we are 
all of opinion that the prifoners mud be difcharged. 

The prifoners difcharged. . 

Penry agatnß Jones. 

an ex9^ 

TjUR&T moved for a rule to (hew caufe, whjr aj 
^^ neretur fhould not be entered on the bail-piecei upon 
an affidavit, that the defendant had been arrefted on a 
latitat^ in Brecinockjhire in WaUsy that the caufe of a£iion 
was a judgment in the great feffions, and that both the 
parties lived within that jurifdiöion. The motion was 
made on the authority of the cafes of Lampley v. Thomas^ 
and Jones v. Jonesy reported by Wilfon [h)j where tlie dcci- 
fion 18 dated to have been, that a writ of latitat does not 
run into Wales; but Duller, Juftce^ mentioned, that 
the contrary had been held, fince t5iat cafe, in feveral in- 
ftances, and particularly in a cafe where Yates, Jußice^ 
had confidcred the queuion very fully, and delivered a fo- 
lemn argument upon it (10). The court refufed to grant 
the rule, and faid, that if the court had not jurifdiSion, 
the proper way for the defendant to take advantage of it 
would be by a plea in abatement. 

{}) B. R.H. 21 Geo. 2. 1 Wilf. 193, 

[10] That was the cafe of Lloyd v. 
Jones 9 T, ^ Geo. 3. The plaintifr de- 
clared againft the defendant in cußodia 
Mare/caUi. The defendant pleaded» 
that he was refident in Montgonuryjhire 
in Wales t and denied the jurifdidion of 
the court. To this plea the plaintiff 
demurred. After the demurrer had 
been once argaed, (when. the cafes in 
Wilfon were infilled upon by the defend- 
ant's counfel,) Tatesy Juftice, went at 
large into the queflion, and examined 
the different lUtates and authorities, 
intimadng a very clear opinion in fa- 
votu: of the jurifdlAion of the court. 
The cafe however flood over to be ar- 

gued again, but the defendant having 
declbed further argument, judgment 
was given for the plaintiff, M. 10 
Geo. 3. —The late Wel/h aft (13 Geo.^. 
£. 51.) fecms very clearly to recognize 
the jurifdidion of other courts, befides 
the Exchequer, (whofe jurifdidion has 
never been denied, though founded on 
a legal üdion as much as that of the 
KJng*s Bench,) to hold plea, and iffue 
me/ne procefs, againfl parties refident 
in Wales. The words are, «* Jn all 
traniicory adions which (hall be brought 
in any of his majefty*s courts of record 
out of Wales, iffc. if it fhall appear that 
the defendant was refident in Wales at 
the time of the fervice of any ^writ «r 
other me/ne Jfroce/s/ervid en him, &c.** 


1779. . 
Jones againß Williams and Another. Xuerday, 

15th June. 
A CTION on a bond.— The defendant Williams craved ^^ «hccondl- 
•^^ oyer of the condition, which was, that one CarrutherSy ?^°" °^ ^ ^^^ 
Who had entered into the fervicc of the plaintiff as his clerk (^^\\ ^^^^ '^^^ 
in the diftillery bufinefs, fhould, during his continuance in bczzic any 
that fervicc, faithfully and diligently fervc him, and in cafe monty that 
he fhould at any time lofe, embezzle, deftroy, purloin,^ ^^''l ^^^\ 
confume, mifpend, or unlawfully make away with, any q„ account of 
money, notes, bills, drafts, ^c, that Ihoiild be entruftcd his mafter, it 
to him, or in any luay come to his hands, cuftody, or pof- «» neceflaiy, 
feflion, by, from, on account of, or belonging to the '" »n aftioa 
plaintiff, or any of his cuftomers or employers, that the obHeor to 
defendants, or either of them, fhould, on notice thereof ibte, in the 
given to them, or either of them, make good the lofs breach, what 
thereby fuflained. — He then pUadedy that Carruthersy dur- Particular 
ing his continuance in the plaintiff's fervice, faithfully and ^^ ^ml^z"*^ 
diligently fervcd him, and did not at any time lofe, em- aied, and 
bezzle, i^c. — RepHcationy that, during Carruthcrs' conti- how, or from 
nuance in the plaintifPs fervice, to wit, on the 15 th of whom itwat 
July 1777, a large fum of money, viz. 13/. 14/. 9^. J "^"»^^ • 
came to his hands, cuflody, and poffeffion, on account of 
the plaintiff, which he, on the fame day, £5'^. embezzled 
and mifpent ; whereof the plaintiff afterwards gave notice 
to the defendant* — ^To this replication the defendant rf^- 
murredf and fhewed for caufe, ** That it did. not appear 
•' whether Carruthers had received the money« for the 
" plaintiff in his bufinefs of a difliller, or in what capacity 
^* he had received it : and that it was not fhewn from 
** whom he had received it." 

Baldwin argued in fupport of the demurrer, i. To 
Ihew that it ought to have been flated, that the money em- 
bezzled was received in the courfe of the bufinefs in which 
Carruthers was employed, he cited Wright v. Rujfel (r). 
Lord Arlington v. Merriche {d)y Houghton v. Day (<•), Stibbs 
V. Clough {/)y and Mills v. AJlell {g). 2. He contended, 
that the plaintiff fhould have fpecitied more particularly 
Mrhat the money was which had been embezzled, and from [ 2IC 1 
^Ärhom it was received ; for that, if iffue had been taken on 
the replication, the defendant would not have had fullicicnt 
notice what the plaintiff went for, to prepare for his de- 
fence : That this objection was more particularly applicable 
in the cafe of a furcty* 

Coivp^ry for the plaintiff, (being told by Lord Mansfield 
to confine himfelf to tlie lafl point, for that the cafes cited 


{c) H. 14 Geo. 3. 3 WiJf. 530. (/) M, 6 Geo. 1. 1 Str. 2I7. 

\d) E. 24 Car. 2. 2 Saufid. 41 1. U) ^^ 7^* *• ^''^« 7"^* -i^^' 

{e) Styl. 18. 

Vol. L i 







on tlic other did not apply> and that there was nothing lit 
the objcftion,) infifted, that the rcpHcation was a full an- 
fwer to the plea. That, in fuch a retail bulincfs as that of 
a diftillcr, the money was received in very fmall fums at 
different times, and it could not be necefl'ary, if the 1 3 /. 
had been received at thirty diflTercnt times, that each frac- 
tion fliould be afligned as a different breach, and ifTucs 
taken on each. That perhaps the money embezzled had 
been taken out of the till, and it could not be known of 
whom in particular it was received j or, on an account be- 
tween the plaintiff and CarruthefSy the latter might have 
admitted the embezzlement. 

Lord Mansfield, — ^The breach mtift be particularly af- 
figned. If the money was taken out of the till, that 
fliould have been alleged. ^ 

Coivper moved, and had leave to amend, on payment of 

J 5th June« 

An a£lion for 
a malicious 
cannot be 
till the pro- 
iecution is 
which muft 
appear upon 
the declara- 

Fisher agalnß Bristow and Others. 

A CTION for a malicious prefentment, (for inceft,) in 
•^*' the ecclefiaftical court of the archdeaconcry of HunU 
ingdon. Demurrer to the declaration^ and caufe afligned, 
that it was not dated, how the profecution was difpofed 
of, or that it was not ftill depending. The court were 
clearly of opinion, that the objedion was fatal, and faid it 
was fettled, that the plamtifF in fuch an adion, muft fhew 
the original fuit, wherever indituted, to be at an end ; 
otherwife he might recover in the aöion, ^d yet be after- 
wards convifted on the original profecution. 

Judgment for the defendants [cö*]. 

[Ö*] Vide Morgan v. Hughes, B,RJI. 
a8 Geo. 3. 2 Term Rep, 225. 5. P. in 
the cafes of commitments by J u dices of 

Peace on malicious accufations, or oC 
malicious holding to bail. 

C 216 ] 

151h June. 

In an a^lion 

Abbot and Another, Aflignees of Farr, a. 
Bankrupt, again/i Plum be. 

'T^HIS was an aft ion of trover^ by the aflignees of a 
J'o F^e^a ""^ . bankrupt, tried before Lord Mansfield, at JVejImirt'^ 
debt which 

ßer. At the trial, to prove the petitioning creditor's debt, 
a witnefs was called, who fwore, that the bankrupt had 
•f h bo d ' **^^"o^^^^ß5^ ^^ ^"^1 ^J^at he owed the debt upon which 
p"<^f of the * ^^^ commiflion had been fued out. On being aflced how 
acknowledg- the debt arofe, the witnefi faid, by bond 5 and the; bond 
nient of the %^a$ 

obligor does 
lK>t luperfede the nectfUty of calliog tbc fubfcribing wltneftt 


Was then produced. The fubfcribing witncfs was an attor- 1 77Q, 
ney, who lived in Somfrßtjhire. He was not called, nor ^ _ _ m 
was there any proof that he had been required to attend, Abbot 
or tliat he could not have been procured. A verdift was again ft 
found for the plainiiflli ; but Lord Mansfield faved the Plumbs« 
tqueftion on the fuiHciency of the evidence ; and Bearcroft^ 
on Tuefday the 8th of Jutie^ obtained a rule to (hew caufc, • 

why a nonfuit fliould not be entered* 

Dun/ihtgf and Davenport^ now (hewed caufe. — ^They 
contended, that, even if this had been an aäion on the 
bond, the admilfion of the defendant would have been the 
beft evidence, and would have fuperfeded the necelfity of 
calling the fubfcribing witnefs. 

Lord Mansfield, — ^To be fure this is a captious objec- 
tion ; but it is a technical rule, that the fubfcribing witnefs 
muft be produced, and it cannot be difpenfed with, unlefs 
it appear that his attendance could not be procured. It 
was doubted, formerly, whether if the fubfcribing witnefs 
denies the deed, you can call other witnefles to prove it ; 
but it was determined by Sir Jofeph Jekyl^ in a caufe which 
came before him at Cheßcr^ tliat, in fuch cafe, other wit- 
nefles may be examined ; and it has often been done fince. 

Ash HURST, Jtiftice — If the evidence of the üibfcribing 
witnefs were to be difpenfed with by this confeffion of the 
bankrupt, the defendant would be deprived of the benefit 
of crofs examining him, concerning the time of the exe- 
cution of the bond, which might be material. 

BuLLER, Jiißice^ — It is an eftablifhed rule that aflignees 
muft prove the petitioning creditor's debt by the fame evi- 
dence which muit have been produced in an aöion againft [2173 
the bankrupt ; and it is necefTary, to recover on a bond^ to 
call the fubfcribing witnefs, unlefs fomc reafon can be 
iliewn for his abfcnce. 

The rule made abfolute. 

MaCPHERSON aminß RORISON. Wcdnefday, 

o •/ i6ih June. 

r-OWPER oppofed the juftification of bail for the de- ^JJ?'"^^^"^* 

^ fendant, who was in cuilody, on the ground, that he change his at- 

had given eight notices to juftify, and four of them in this torney with- 

term, bv four different attornies, and without having ob- out the leave 

tained the leave of the court to change his attorney. The ^^^^ com. 

Mafter certified, that, by the eftablifhed praftice, a party juftjfy tjü 

cannot change his attorney without the leave of the court ; has been given 

upon which the bail were not permitted to juftify [i]. by a new at- 

Co^vper alfo infifted, that the plaintiff fliould be allowed ^^^^\ ^^^t 

^"^ court, the 
bail will not be permitted to juftify« 

[1] Vidi 5. ?. in C, B. Kayt v. De Mattos, M. 20 Ceo. 3. 2 Blackß, 1323. 

P Z 





X7tb June« 

Two or more 
in different 
anions can- 
not be held 
to bail upon 
•nc affidavit. 



the cofts he had been put to, by inquiring after fo mari^ 
bail, and attending to oppofe them ; and mentioned that it 
was the rule in the court of Common Pleas to allow cofts in 
fuch cafes. This, however, was refufcd, as it did not ap«* 
pear that this court had ever given cofts in fuch a cafe. 

GiLBY againß Lockyer. 

/^N a motion, by Convper, for a rule to (hew caufe, why 
^^ the proceedings in this cafe fhould not be fet afide, 
for irregularity, it appeared, that the defendant and two 
other perfons had been held to bail, in feparate aft ions, 
upon one affidavit. The defendant was named fecond in 
the affidavit. When caufe was ftiewn, on Tuefday the 1 5 th. 
of Juney the Matter certified, that it had been fettled, that 
feveral defendants in diffijrent aftlons, cannot be put into 
the fame affidavit ; and Ashhurst, Jtdßiccy mentioned a 
cafe, where feveral perfons having been admitted to the 
freedom of a corporation upon one ftamp, the admiffion 
of the perfon^jr^ named was held to be good, and that of 
all the others void. Upon this the court made the rule 
abfolute •, but Duntiing having fuggefted, next day, that 
the Mafter had miftaken the practice, that, both in thi^ 
court, and in the Common PleaSy it was ufual to put more 
than one defendant into the fame affidavit, and that, in a< 
cafe which came before this court, where no lefs than eight 
had been inferted in one affidavit, the court had held it ta 
be good againft all, Lord Mansfield defired the matter 
might ftand over for further confidcration. 

This day his Lordftiip delivered the opinion of the courts 
as follows : 

Lord Mansfield, — ^The Judges of the court of Common 
Pleasy and the Barons of the Exchequer, have been con* 
fulted, and they all agree, that they never ineiu of it's 
being the practice in their courts, that more than one de- 
fendant fhould be inferted in the fame affidavit. If, in fa£l, 
fuch a pra£^ice has prevailed, it has been without their 
fanflion or knowledge. They all difapprove of it, an4 
confider it as contrary to the meaning of the aft of parlia-' 
ment (Z>), and a fraud upon the ftamp-duties. Let the 
judgment ftand as at firft pronounced. 

The rule made abfolute [f 64]. 

{h) 12 Geo. 1. r. 29. amended by 
c Geo. 2. f. 27. and made perpetual 
by 21 Geo. 2. c. 3. 

[ 1 64] f^i^e Crooke T. Dat^isrS. R .M. 
II Geo. 3. 5 Burr. 2690. where, the 
defendant having been held to bail in 
IS adtioD of debt upon a bondj and alio 

in another of affumpfit^ upon one affi- 
davit, the court, (in the abfence of 
Lord Mansfield^) difcharged him upoa 
common bail, in both actions, ty S. P^ 
Soutbcote v. Bratbwaite, B. R. M^ 
26 Cfo. 3> 


CoRT agalnft Birkbeck. 

THIS waa an a£lion on the cafe. — ^The declaration con- A cuftom 

tained fourteen counts.— The firft ftated, That the inha^bTtants*^^ 

plaintiff was polfeffed of certain water corn-mills, within ^f ^ „anor 

the manor of SetiUy in Torkßirey and, by reafon thereof, (hall grind all 

was entitled to the toll and multure of all corn, grain, and their com, 

malt, ground at thofe mills ; That, during all the time of ^J"» ^?^ . 

his polfeflion [11], all the tenants, inhabitants, and refiants, them^r'any 

within the manor, " ought to have ground, and ftill ought of them fliall 

** to grinds all their cortiy grain ^ and malty which by them or be wfcd «r 

« any of them had been or ßottld be ufed or [pent ground within ^^^i^^^T^ 

•* the manor y at the plaintiffs millsy ana not elfewhercy and ^anor at a 

^* to have paid and yielded, and to pay and yield * to the certain mill,'* 

*' plaintiff for the grinding thereof certain reafonabk toll i« good.— Oa 

•* and multure [and ought not to have ufed or fpent, nor * <lcmurrcr 
., ^ r r 1 • !-• ^1- • to evidence. 

** to uie or Ipend withm the manor any corn, gram, or ^^ ^^^ ^l^^ 

** malt ground which had been or fliould be ground elfe- not take ^d- 
" where than at the plaintifTs mills] ; That tlie defendant vantage of any 
** was .a tenant, inhabitant, and refiant, within the manor, objeaion to the 
^* and that he contriving, {fJ*r. to injure and prejudice the ^ * ^ * 
** plaintiff, and deprive him of the profits and advantage of L 2^9 J 
'* his mills, and of the toll and multure which would have 
*' accrued to him, 55*r. did knowingly, lac. ufe and fpend 
** ground within the /aid manor, divers large quantities of 
'* corn, grain, and malt, of the defendant, which had been 
** ground elfe where than at the plaintiffs mills y and which 
" the defendant, at the times of udng and fpending tjiere- 
** of, knew to have been ground elfewhere ; by means 
** whereof the plaintiff had been greatly injured in* the 
** profit of his mills, and had wholly loft and been de- 
" prived of the toll and multure which would have arifen, 
'* and become payable to him for the grinding of the faid 
** corn, grain, and malt, if the fame had been ground at 
** his mills.'* — The fifth count was the fame with the firft, 
except that the negative words, printed above in a paren- 
thefis, were omitted. — The defendant pleaded the general 
iflue ; and, the caufe coming on to be tried at the laft 
fummer Aüizes for Torlfhircy the plaintiff, to prove the 
cuftom, produced, befides feveral witnefTes ; i. The pro- 
ceedings in a fuit in the Exchequer, M. 5 Geo. i. wherein 
the then occupier of th^ nulls was plaintiff, and fome of 


[11] It was determined, in the cafe r/W/y, bfc. and in Coryton v. Littlehya 

of Chapman v. Fkxmar.y (cited infra, (alfo cited ;;//r«, p. 221.) that it is not 

p. 221.) that it is not neceffary in the nccefHiry to lay the mills to be ancient 

declaration in this aftion to fay that mills, 
the inhabitants had and ought iffungmo- 



xyyg, the tenants and refiants in the manor defendants, and m 
l_ - - J which an iflue was direftcd to try «* whether by virtue of 
CoRT ^^ an aticicnt and immemorial tenure^ cußom^ or ujage^ all 
again ft ** and e\^ery the tenants y inhabitants ^ and refiants^ of and in 
BiRKBECic. ** the manor 0^ Settle had bcen^ and nvere tied and bounds 
** and cf right had ufedy and ought to grind a/I their and every 
** of their coniy grain^ and fnalty nvhich by them^ or any of 
** them had been or fiould be ufed or fpent ground nvithin the 
** manor, at the /aid corn tnilhy and not elfe*ivherey and to 
*' pay to the oivner or occupier of the fetid mills for grinding 
•* the f aid corn, grain y and malty ftuh toll and multure as had> 
*^ been accußomnbly paid or yielded C^ 2. The record of the 
verdift, H. 8. G. i. (whereby the jury found the cuftom in 
the words of the iflue) ; 3. A decree of the court of Ex- 
chequer, of 28th January 1 722, eftablifliing and confirm- 
ing the cuftom i 4. The proceedings in 1756, and 1757, 
on a fcire facias to revive the decree againft fome of the 
then inhabitants. — ^To fhew the breach, one Armitflead^ 
t 220 3 the plaintifPs miller, proved an acknowledgment by the 
defendant, " that he had ufed American flour^^ He alfo 
proved, that, though the defendant was in very fubftantial 
circumftances, he had only ground one load of malt at the 
plaintifPs mills from OElober 1773, to Jidy 17741 and only 
one load of wheat during four years ; and another witnefs 
proved, that the defendant brewed about four or five 
times in the year, (but tliat he had fecn the plaintiff's 
miller bring him malt, and no body elfe;) that he had 
known the defendant have fine flour in caiks, which he 
believed might be American flour, as none had been brought 
from the neighbourhood. Several of 'the witnefles faid, 
on their crofs examination, that oat-meal was much more 
ufed by the common people in the manor of Zettle, than 
flour, that about 40 years ago they ufed nothing elfe but 
©at-meal, and that there is a weekly market where oat-meal, 
not ground at Zettle mills, is conftantly brought, and fold 
to the inhabitants. 

The defendant demurred to the evidence, and the cafe 
came on for argument, in Hilary Term, 19 Geo. 3. (Tuef 
day the 2d of February 1779). 

Woody for the plaintiff, — Chambrey for the defendant. 
For the defendant, it was contended ; i . That the cuf- 
tom was not proved; 2. That it was void; 3. That the 
breach by the defendant was not proved, i. It was faid, 
on the firft head, that the negative part of the cuftom was 
not part of the iffue in the caufe in the Exchequery nor efta- 
blifhed by the decree, nor by the parol evidence. 2. That 
if the cuftom, as laid, extended to a prohibition from ufing 
any corn, or malt, which had come into the poffefEon of 
the inhabitants already ground, as flour, meal, fafr. it was 
fo unreafonable a reftraint on the liberty of the fubje£t, as 



could not be fupported in law, for that it would prevent I77Q, 
them from ufing flour, t5*r. not made at the plaintiff's \ i 

mills, even if they received it as a prefent, or in charity. Cort 
That formerly the method of trying quelUons of this fort, againft 
was by the writ de feSla ad molendinunii. in the place of Bxrkbeck. 
which, actions on the Cafe had been fublKtuted in modern 
times; but that, in all the precedents of either fort, there 
was no inftance of fuch a cuftom. That, in Fitxherberfs 
Natura Brevitnn (/) it is laid down, that the fuit de feEia ad 
molendinum only Hes, where the party withdraws his fuit 
from the mill where he ought to grind, and goes to ano- 
ther; and, in all the declarations in adlions on the cafe, it [ 221 1 
is dated, that the defendant did not grind at the plaintiff's 
mill, which implies that he had corn in a grindable ftate. 
That all of them, except one in Brawnlonu {]i\ go on to 
ftate, that he had a£lually ground at another mill ; Harbyn 
v. Greene (/), Coryton v. Lithebye {m)f Chapman v. Flex man 
{n). That, in the cafe of Harbyn v. Greene^ a cuftom " for 
** inhabitants to grind all their grain whatfoever hy them fpent 
** or fold," at the plaintiff's mills, was held to be void. 
jf^ That, if the meaning of the cuftom, as laid, was, that 
the corn which the inhabitants were poffeffed of in a grind- 
able ftate, Ihould, if ufed ground, be ground at the plain- 
tiff's mills, then no breach was proved, the only evidence 
being that the defendant had ufed American flour. That 
buying corn already reduced to flour might, under particu- 
lar circumftances, amount to aajevafion of fuch a cuftom, 
but that the declaration ftiould have been differently framed 
if the plaintiff had meant to go upon an evafion, which 
was an injury of a different fort from a direci breach. 
That the grievance ft a ted by the plaintiff was the lofs of the 
toll for the com ufed by the defendant ; but that he never 
would have been entitled to any toll for the flour proved to 
have been ufed. That it did not appear from the evidence, 
how the American flour had been ufed. That it might 
have been bought and refold by the defendant, which 
would have been neither a breach nor evafion of the cuf- 
tom. That there was no evidence at all of the ufe of oat- 
meal, nor any even of malt, not ground at the plain- 
tifl^s mills. 

Wood^ for the plaintiff, infifted, that the cuftom, ex- 
actly as laid in the fifth count, was proved by the vcrdift 
and decree in the court of Exchequer ; for the negative 
words were not in that count. That, however, the want 
of them in the evidence, made no fubftantial variance on 
the Jif^ count, as they only contained mattet of neceffary 
inference. That, as to the evidence of the breach, it was 


(/) P. 123. or in Ed, 1755./. 28. (/*) E. 22 Car. 2. 2 Saund. itz. 

(/) Br(ywnl. Ent. 63, 64. (») Cam. Scacc. M. I W. ^ M. 

(/) T. 14 Jac. I. Hob. 189. t Fentr. 208. 

P 4 

22 1 




[ 222 ] 


not necefl'ary for the plaintiff to fhcw it with rcfpeÄ t^ 
every kind of grain. That in the cafe of Harbyn v. Greene^ 
the cuftom was held to be ill on the ground of its extend-} 
ing to a prohibition of the ufe of corn not ground at all [12]» 
He faid he refted the cafe on the iirft and fifth counts ^ 
and read a note of the cafe of the Manch'eßer Mills in the 
Duchy Court, 21 May 1757, before Lord Mansfield^ 
and C//W, JuUice, adilUng the Chancellor [13], as being 
exadly in point. 

AsHHURST, and Buller, Jußices^ having fignified their 
opinion, that it was not competent to the defendant to 
call in qucllion the validity of tlie cuftom, on a demurrer 
to evidence, the Solicitor General j and Dunning^ fpoke to 
that point. The latter contended, that, in whatever part 
of a caufc a party demurs, the proceedings are ftopt, and 
the cafe brought before the court in fuch a manner, as 
that they are to fay, whether, upon the whole record, 
the plaintiff is entitled to recover. That the defendant 
could not have taken advantage of the illegality in the 
cuftom which he now relied upon, by demurring to the 
fieclaraticn, becaufe he admitted, that, in fome of the 
counts, a legal cuftom was laid, and only contended, that 
in thofc to which the evidence was pointed, the cuftom 
laid was illegal. That if he could not make the objeftion 
now, he would be entirely precluded, in this court, if the 
evidence Ihould be thought fufficient to maintain the iffue, 
becaufe, in that cafe, judgment would be inftantly pro- 
nounced without leaving four days to move in arreft of 
judgment, which the defendant would have had, if the 
qucllion had gone to the jury. To this the Solicitor Ge^ 
w^rfl/ anfwcred •, i. That they might have demurred to 
the bad counts fcparately ; 2. That the judgment pro- 
nounced on this occafion would be only interlocutory, after 
which a writ of inquiry muft iffuc, to fettle the damages, 


he delivered on the occafion, laid it 
down ; 1 . That the decree eftablifhing 
the cudoiTi, and which had been con- 
firmtd by others, both of a prior and 
fubfcquent date, ought not to be con- 
troverted, nor the exigence of the 
cufiom litigated ary further before a 
jury; 2. That fuch a decree binds all 
perfons under the fame defcription with 
the original defendants ; but, 3. That 
it is only in tlie cafe of a direä breach 
that fuch a decree can be revived by 
fcire facias, and, if it is e^adid^ the 
metliod of prccccding is by a fupple«^ 
mental bill. 

[12] The fame objcäion was taken 
by T^lfderiy Juflice, to the cudom in 
Cory ton v. Lithehye. 

[13] That was an application to re- 
n;i've, h'^ fcirc facias , a decree of 5 Jac, 
1 . againll the defendants. I'he decree 
had eftablifhcd a cullum that all the in- 
habitants of Manchejhi- fliould fend their 
com which was to be fpcnt in their 
houfes to be ground at the plantiff's 
mills. The defendants had bought 
bread made of flour, v* hich the bakers 
had brought from fome place in the 
neighbourhood, and which had not been 
ground at the plainuiF's mills. Lord 
Man^JiJd, ill a fokmn argument which 



find then, before final judgment, they would have the I779» 
four days, as in other cafes [14]. ^ — - j 

* AsHHURST, Jußicey obferved, that if the court were to Cort 
;illow the demurrer to the evidence upon objeftions to the againft 
declaration, it would feem to pofterity, by the record, Bihkbeck^ 
that the court had determined that there was no evidence * [^ 223 J 
to be left to the jury. 

The court took time to confider, and this day, Lord 
Mansfield delivered their opinion, as follows. 

Lord Mansfield, — ^This is an aftion on the cafe, la 
which the plaintiff dates, precifely, and fpecially, his 
ground of action, which is, (^ dated in the fird and fifth 
counts,) that he is poflefled of certain mills at Settle ^ and 
that no tenant, inhabitant, and refiant within the manor, 
can fpend or ufe corn ground, which has not been ground 
at the plaintifPs mills. The breach alFigned is, that the 
defendant ufed ground within the manor, feveral quantities 
pf corn, t^c. which the defendant well knew to have 
been ground elfewhe|-e than at the plaintiff's mills. To 
this the defend;int has pleaded not guilty. The ilfue is— 
pn the cudom, — the defendant's being fubjedl to it, — and 
the breach. The plaintiff mud prove all the three points. 
The defendant does* enough if he difprove any of them. 
The parties go to trial by the authority of the court, to 
inquire into the truth of thefe fafts. ' This is not like an 
cjeftment, or an aftion for money had and received, 
where conclufions only are dated in the declaration, and 
the premifes appear in evidence. Every thing to be proved 
is here fet forth, and they have nothipg to do at the trial 
with the quedion, whether the fa£ls, as alleged in the • 
declaration, are or are not fufficient to entitle the plaintiff 
to recover. If that had been intended to be difputed, it 
might have been done in limine y by a demurrer to the de- 
claration. As to the evidence, it feems to me, that the 
cudom edablifhed by the decree in the court of Exchequer 
is the fame, in fubltancc, with that on which this aftion 
is brought. It is admitted on the record that the mills 
are the fame, and that the defendant is refiant in the 
manor. — (His Lorddiip then dated all the material part 
pf the evidence). — To this evidence the defendant has de- 
murred, and the only quedion is, whether, if the jury 
believed the evidence, // is competent to maintain the 
ilTue. As to that quedion, there is no doubt but the pro- 
ceedings in the Exchequer^ are evidence to prove the 
cudom, and that the parol tedimony of Armitßcad is 
evidence to fticw that the defendant ufed flour not ground 


[14] \{ the jury had aflefTed the da- interlocutory and final judgments would 

mages conditionally at the trial, as have been pronounced uno ßatut or an 

they might, and as was done in ^co- interval of fo^r days left between 

laßica^s Ca/t, Ph'wd. 410. %. if the them. 


1 77Q« *^^hc plaintiff's milts. The demurrer feems to be founded 

1^ _ _ ^ on a miftake concerning the nature of this proceeding. 

CoRT It ^^^ argued as if it had been a demurrer to the * decla« 

againd ration, or a motion in arreft of judgment, on the objeäton 

BiRKBECK. tliat the cuftom could not be fupported in law beyond the 

• r 224 ] c^f'^ of corn in a grindable ftate, and could not extend to 

flour imported or given to inhabitants, and ground before 

it came to their pofleflion. But that is rtot now before 

the court ; nor was it under the cognizance of the jury. 

Nothing can be ftronger to fhew this, than the judgment 

which we muft give, viz. *^ That the evidince was fuffic'tent 

*^ to maintain the ißue** This will not be final. The con- 

* fcquence will be the fame as if a verdi£l had been given 

for the plaintiff. But there is one defeä which would 

not have been, if there had been a verdict, namely that no 

damages have been affeffed, and therefore there muft be a 

writ of inquiry. After that, the defendant may take ad- 

Tantage of any objeftion to the declaration^ by moving in 

arreft of judgment, or bringing a writ of error. We arc 

all of opinion that the evidence was fufficient. 

A writ of inquiry having afterwards been executed, and 
damages taken only on tlicßfth count, Chambre^ in Eaßer 
Tenriy 19 G. 3. {Saturday^ the 24th of ^prily) obtained 
a rule to (hew caufe, why the judgment ihould not be 
arreßed, and that rule came on to be argued in this pre- 
fent term, {ThurfJay^ the loth of Jimey) by the Solicitor 
General^ Lee^ and Wood^ for the plaintiff, and Dunning^ 
Davenport^ and Chatnbre^ for the defendant. 

For the defendant, the former objeäions to thci validity 
of the cuftom, in the extent contended for by the plain- 
tiff, were repeated ; and it was alfo urged, diat the words 
in which the cuftom was ftated, meant only, that all the 
corn which the inhabitants, l^c. fliould ufe ground, and 
ivbich fiotdd be ground within the wanory muft be ground at 
the plaintiff's mills. That they would fairly admit of that 
conttruöion; and, if that was their meaning, the de- 
fendant could not be charged with a direH breach : and no 
fraudulent evafion was laid, for the formal words ^^fraudu-- 
** lentlyy tSJ'r." were not a fufficient allegation of an eva- 
fion. A great deal was alfo faid on the effeft of the 
evidence, and on the confequence of a judgment over- 
ruling a demurrer to evidence ; but what was urged oi\ 
thofe heads was contrary to the explanation folemnly 
given by the court of the effeft of fuch demurrer, in the 
cafe of Cock/edge v. Fanjhaw (0). 


{0) Supra, £.19 Geo. 3. p. 1 19. prefent cafe was pofterior; and I have, 

131 to X34. The argument and de- as in other inftances, thrown together 

ciiion on the demurrer in this cafe were the account of all the proceedings in 

grior to thofe in Cock/edge v. Fanjhaw, COttTt upon it. 
ut the ultimate determination of the 


The court took time to confider, and now Lord 
Mansfield delivered their opinion, to the following 

Lord Mansfield, — When we heard this argued, a 
doubt arofe on the extent of the cuflom, whether it goes 
only to corn growing in the manor, and ground there, or 
to all ground corn wherever it may grow, which is con- 
fumed within the manor. But it appears from the anfwers 
in the fuit in the Exchequer^ (which his Lordfhip read^) 
that the defendants then infifled on the reftraincd fenfc» 
and that they were not bound to grind corn which grew 
out of the manor at Settle mills ; and the decree eftablifhed 
the cuftom to the extent now infilled upon, and proves it 
to be reafonable» 

The rule difchargei 




again ft 


The King againß the Inhabitants of St. John's, 


13 Y an order of two Juftices, the pauper, (who was the 
^ widow of one Daniel Turner^) and her three children, 
were removed from Miicham to 5/. John^s^ Southivark^ and 
on an appeal, the order was confirmed by the court of 
Quarter Seffions, fubjefl: to the opinion of tliis court, on 
the following faös. ** The name of the hufband was 
** inferted in the land-tax rate within the parifti of Mit-' 
*< chanty in the following manner : 

A perfon 5xrb5 
has actually 
f€ud^ but wa« 
not raud to the 
land-tax, does 
not gain a let« . 




For what 

In whofc oc- 


C'S o o 





o 10 10 

** The pauper's hufband occupied the houfe of which he 
** is defcribed as occupier, and paid the rate for fqveral 
** years. The rate throughout was in the fame form. 
" The land-tax, by agreement with the landlord, was de- 
*« duded from the rent," 




The King 

ßt. John's. 


The cafe came on to be argued this day, when th# 
court confirmed the order of feffions, on the authority of 
Rex V. Cnr/haltofi (/>). 

RouSf in fupport of the order. — Mingay on the other 
fide [f 65]. 

(/) E. 15 Geo. 3. Burr. SettL Ca. 
No. 252. 

[f 05] The follo>ying cafe l^as been 
(ince determined. 

T'he King «v. the Inhabitants of 
MxTCHAM, B. R. E. 23 Geo. 3. 

John Heard, his wife, and children, 
were removed by an order of two 
Juftices, from Mitcham to Moredcn. 
On an appeal, the order was quaflied, 
and ^ fpecial cafe made, which fet 
forth, that Heard inhabited for feveral 
years, a Jioufe at Mcredon, which he 

rented of a Mr. Gaffon, (alfo an inha* 
bitant of Moredpn,) at the yearly rent 
of c /. clear of all taxes, parliamentary 
and parochial. That, while he fo held 
and occupied the fame, an affefrment 
was made on the pari(h of Moredon, 
for the land tax, the title of which was 
as follows: •* Surrey, &c. anaffeflT- 
f« ment on the inhabitants of the parifh 
*» of Moredqn, for raifmg a fum by a 
" land-tax for the ferviceofthe year- 
" 177 — .*' That the following was 
the form of the affefTment^ as far as it 
rcfpedled the pauper, 


Landlords names. 

Tenants names. 


Mr. Gaflbn. 

John Heard, 

9 9r 

That Heard paid the faid 9/. 9*^. 
to thp collector, who demanded the 

Mingay ^ in fupport of the order of 
feffions, contended, that the land-tax 
is a landlord's tax. The agreement, 
by which the tenant was to pay all 
taxes, makes no difference, for a pri- 
vate agreement cannot affcft the parilh. 
The payment by the tenant is u pay- 
ment by the landlord. The rate is 
made on inhabitants. The cafe rtates, 
that the landlord was an inhabitant. 
His name could be infcrted for no other 
purpofe but to rate him. The reafon 
for inferting the tenant's name is to 
diredl the colledor, for, though the 
tax is impofed on the landlord, it is to 
be coUeded from the tenant. II0 
cited Rex v. Carjlalton, 

Palmer, on the other {id^t, infiflcd, 
that this cafe was very di^linguifnable 

from Rex v. Carjhalton. There, the 
rate was on inhabitants and land- 
holders, and the tides of the columns, 
being formed into a fentence, figniüed, 
that the landlord was rated for a tene* 
ment in the occupation of the tenant. 
The court decided againft the fettle- 
ment, in that cafe, with great regret. 
Here nobody is exprefsly rat^d. The 
title ftates the affeflment to be on inha- 
bit ants. As to the inhabitancy of the 
landlord, that is merely accidental, 
and it cannot be fuppofed that all the 
landlords in tlie rate are inhabitants. 
It is not true, that the land-tax is pro- 
perly a rate on the landlord. A rate is 
no more than a defignation of the per- 
fon, who is the objed of the authority 
of the afleflbrs, and is to be called upon 
for the payment. The intention is, 
not to rate the perfons who are eventu- 
ally liable, but the vifible holder -of 



the land. This is evident from the 
words of the land-tax aft, viz, *' Per- 
fons having or holding any fuch 
manors/ &c." («). The grantee of 
a rent- charge is liable to the tax, but 
is never nominally rated, nor called 
upon. There may be twenty people 
interefted in different ways, m the 
fame land^ Every claufe in the aft 
favours the conilruftion, that the tenant 
is the peribn meant to be rated. By 

^ 15. the tenant is liable to 
[ 227 } be difbrained upon, and to 

be committed for want of 
diilrefs. By § 16. a jurifdiftion is 

given to the commiffioners, to fettle 
ifputes between landlords and tenants, 
the preceding claufe having empowered 
the tenant to deduft out of the rent,y& 
much of the tax as the landlord ought 
to pay. Therefore, he does not, ne- 
ceffanly, pay alL How much he ought 
to pay depends on the private agree- 
ment between him and his tenant, 
which the commiffioners have power 
to inquire into, though the aiTefTors 
have not. In the prefent cafe, the 
landlord was to bear no part of the tax. 
By § 62. which impofed a double tax 
on Papifls, the landlords only were 
made liable^ and the tenants discharged 
by exprefs <words. The principal rea- 
fon for inferting the landlord's name in 
the rate, feems to be> to afford evidence 
of his right to vote for knights of the 
ihire; and for that purpofe only, not 
with any view to the afleffment or col- 
leftion of the tax ; a form is eftablilhed 
by 20 Geo, 3. r. 17. for land-tax afTefT- 
ments, in which there is aa expreis 
column for landlords. 

Lord Mansfield^— The quedion 
is, whether the landlord, or the tenant, 
b the perfon charged. The affeflment 
has no words to (hew which of them is 
charged. We muft gather it, there- 
lore, from other circum (lances. In the 
firfl place, who ought to be charged ? 
Ceruinly the occupier. The landlord 
is not known. The land itfclf, in the 
kaods of th« occupier, is the debtor to 

t ad 


The Kino 

St. John's» 

the public. What does 
the affeffment profefs to 
do? To rate the inhabit ^ 
ants ; that is the occu- 
piers. Of whom does 
the coUeftor demand 
the rate, and who pays 
it ? The occupier. The circumftancei 
fupply what is omitted in the rat« 

Willes, JufHce, — This rate is on the 
inhabitants only, and not like that ia 
Rex V. Carfoalton, 

Bullery Juftice, — In Rex v. CarßaU 
ton, the court went upon the word 
" ratedi^ in the landlord's column. 
The doubt, here, has arifen from the 
common phrafe, that the land-tax is a 
landlord's tax. But as to that, Mr. 
Palmer*$ obfervations are unanfweraWe. 
It is not a landlord's tax with refpeft 
to the public, though it is, as between 
landlord and tenant. Beüdes, the title 
alone, in this cafe, is decifive. It is 
equivalent to faying, that the tenant 
was rated. 

The order of Seffions quaflied, and 
the original order confirmed. 

Fide, alfo. Rex v. the Inhabitants of 
the to^wnßips of Endon, Longfdon, and 
Stanley, M. 24 Geo, 3. and Rex v. the 
Inhabitants of St, Lanvrence, M. ij 
Geo, 3. where the doftrine in the above 
cafe of Rex v. Mite ham was confirmed. 
But, in Rex v. the Inhabitants of St. 
James* s. Bury St, Edmunds, M. 25 Geo^ 
3. where there was a colunm of pro-^ 
prietors, and another of occupiers, in 
the affeffment, and it was not fpecified 
which was rated, and, the colleftor 
having demanded the land-tax of the 
tenant, he paid it, but took a receipt 
in which the fum paid was defcribed 
to be "fo much aßjed on the landlord,*' 
the court held, that the tenant did not 
gain a fettlement. 1^* Rex v. the In* 
habitants of Folkeflone, M. 30 Gt9, 3- 
3 Term Rep, 505. 

(a) 4, Geo, 3. c. 2. § 4. 



Cases in ^trinity term 


29th June» 

A defendant \t 
not entitled to 
•fcr of the ori- 

final, and, if 
e prayi «y»-, 
die plaintiff 
mav proceed 
without taking 
9ny notice of iu 


Boats againfi Edwards, 

(\tJ a rule to fliew caufe, why the interlocutory judg- 
^^ ment, which had been figned for the plaintiff, fhould 
not be fet afide for irregularity, it appeared, that the de- 
fendant had craved oyer of the original, which the plaintiff 
had taken no notice of, but had figned judgment for want 
of a plea. 

Lord Mansfield defired the bar to take notice, that 
the pra£kice, for defendants to pray oyer of the original, 
which is fo much ufed for delay, is not warranted by any 
rule or principle of juftice. That it is incumbent on the 
court to make their proceedings as little dilatory, oppreflive, 
and expenfive, as poflible. That it is unneceflary for the 
defendant to fee the original, after he has been informed 
of the caufe of action by the declaration. That the court 
of Common Pleas has lejefted the praftice (a)\ and that^ 
from henceforth, plaintiffs in this court may proceed, as 
if fuch demand of oyer had not been made. 

Dunning^ and Cowper, for the plaintiff. — The Solicitor 
General for the defendant. 

The rule difcharged [f 66;}. 

(a) f^ide Ford v. Burnbam, C. B. T. 
11 ^ 12 Geo. 2. Barnes 410. edit. 

[t 66] Fide Dttrrant v. Surecold, 
B.R.E. 24 Geo. 3. & Durrant v. Laitj^ 
rence, B. R.M. 25 Geo, 3. 

ftxfl June* 

RoBSQN againß Calze. 

If fome of a 
creditors are 
induced by 
money to fign 
his certificate. 

npHE defendant had applied to the court, to be dif- 
•*- charged out of cuftody, on filing common bail, upon 
an affidavit, that he became a bankrupt after tlie debt was 
contrafted, and had obtained hi« certificate. This motion 
was oppofed, on the ground of his having concealed paft 
JoÄwon! ^^ ^*^ ^^^^^* ^"^ ^^^' ^^ certificate was obtained by 
at the time of fraud. The court, not choofing to determine upon affi^ 
the figning, nor davits^ direfted a feigned iffue, to try, ** whether the cer^ 
even when he «« tificate was obtained unfairly and by fraud {q)** This iffue 
Sffa^lLavit ^^^ ^"^^ ^^ the Sittings for Middle/ex, before Lord 
in order to Mansfield, in this term, when a verdift was found for 
obwin the the plaintiff, and the cafe was this day argued upon a rule 

to fhew caufe, why tliere fhould not be a new trial. 

Bearcrofty for tlie plaintiff. — ^The Solicitor General, Dun'* 
ningf and Dayrell, for the defendant. 


allowance of 
the certificate 
by the Chan, 
cellor, yet, if 
he knows it 

before the aflual allowance, the certificate is void. 

(f ) 5 Geo. 2, c. 30. § 7; 


It appeared from Lord Mansfield's report, that, when 1 770, 
the counfel for the plaintiff had offered to call witnefles, \ - - J 
to prove that the defendant had concealed effefts to the Rob so k 
value of 10/. (r), this was objeöed to, as not wthin the againit 
terms of the iffue ; but his Lordfhip thought it was, and, Calze. 
xit any rate, faid he would not turn the plaintiff round, 
but, if the jury ihould find the concealment, would order 
that to be indorfed on the Poßea. There was, however, 
no fuch fpecial indorfement, fo that the vcrdift was found 
on the ground of fraud in obtaiiling the certificate ; on 
which head the proof was, that notes for money had been 
given by a confidential friend of the defendant, who had [ 2^9 ] 
managed all his affairs, to two of the creditors, who were 
thereby induced to fign the certificate ; that the defendant 
did not know of this, at the time when he made the affidavit 
dire£lcd by ftatute 5 Geo. 2. c. 30. § 10. by which he 
fwore, that, " the certificate and confent of the creditors 
•< thereunto was obtained fairly and without fraud ;" that 
this affidavit was made on the 4th of September^ but was 
not laid before the Chancellor with the certificate, for his 
allowance^ till November^ and that, before that time, the 
defendant had been informed of the notes having been 
given, and for what purpofe. 

For the defendant, in fupport of the rule for a new 
trial, it was contended ; i . That a certificate is not void, 
although fome of thofe who figned may have received 
money to induce them to it, provided, the bankrupt him- 
felf was not privy to the giving of the money 5 2. That 
the words " obtained by fraud" in the aft of parliament, 
apply to the figning by the creditors, not to the allowance 
by the Chancellor. 

Lord Mansfield,— I am clearly of opinion, that the 
words of the iflue took in the whole queflion, and were 
fo intended by the court \ for, where there is a conceal- 
ment, the certificate is not fairly obtained. The queflion 
now is. Whether the certificate obtained by means of notes 
given to fome of the creditors is fair, and fuch as the 
defendant may avail himfelf of ? If there were creditors 
enough who would fign the certificate, and an enemy of 
the bankrupt were to give money to one of the creditors 
to induce him to fign, for the mere purpofe of preventing 
the bankrupt from receiving any benefit from the certifi- 
cate, this would be a fraud on the bankrupt, and fhould 
not hurt him. But the reafoning on the part of the de-» 
fcndant arifes from not attending to a diftinftion, viz. 
that although a third perfon (hall not be punißed for the 
fraud of another, he fhall not avail himfelf ot it. There 
is no cafe in the law where that can be done. In the cafe 
of iimony, the prefentation is void, though the money haa 

(r) Ibid. 




lyjOm ^^co* fT'O» without the privity of the prefentce. In like 

1^ - f manner all fccuridcs obtained bjr fraud are void. There is 

Bjom%oM no waf ot compelling the creditors to fign the certificate. 

a^al Ther arc all left at iiberty, and ought to be upon a par* 

Calxs« and if fome are induced to (ign it^ becaufe others have, 

wbom they fuppofe to be upon a par with themfelves, but 

wliOy in fiäti have been paid^ this is a grofs fraud upon 

dicm. So the nutter would (land if there had been no 

privity in the bankrupt ) but there is (Irong evidence that 

( 230 ] he kncv of die notes being given before the alloivance of 

the certificate^ which, in my opinion^ is not complete till 

k b aUenrnd. If the fact had come to the knowledge of 

any of the creditors, and had been ftated by them to the 

Qtancdlor, before the allowance of the certificate, he 

could not hare allowed it. However, I put the cafe on the 

bn»d grouiid that a certificate is void, if obtained by frauds 

though without the knowledge of the bankrupt. 

WiLLES, Juftice^ — ^Perhaps it may be difEcult to lay 
down a general rule, bow far the certificate of a bankrupt 
mar be aficc^ed by the ad of a friend ; and therefore I (hall 
give no opinion on the firfl point, although I am inclined 
to think, that, in this cafe, the certificate would have 
been void, if the defendant had not known of the notes 
having b«n given. But, on the fecond ground, it was 
certainly a fraud in the bankrupt to permit his affidavit 
to be read at the time when the certificate was allowed ^ 
for though it might be true when fwom, it certainly was 
not true then \ and therefore I am clear that the certificate . 
is void. 

Ash HURST, Juß'ue^ — ^It feems to me, that the inter- 
ference of a friend, though without the knowledge of the 
bankrupt, is fufficient to invalidate the certificate, becaufe 
the tell which the legiflature requires, is the unbiafied 
approbation of the creditors. I fliould be clear on this 
ground alone, but there is another in this cafe. 

BuLLER, Jußicii — I fhall fouud my opinion folely on 
the adl of 5 Geo, 2. which makes it unlawful for third 
perfons, as well as for the bankrupt, to give money to 
induce creditors to fign the certificate (/). If money is 
given in order to deprive the bankrupt of the effeä: ot his 
certificate, where there are creditors fufficient in numbet 
and value, without thofe who are paid to fign it, the 
bankrupt fhall not be hurt by this fraud upon him ; but, 
if the necell'ary number and value is completed by perfons 
. who are induced to fign by money, thatj though without, 
die privity of the bankrupt, is a fraud on the creditors at 
large, and fhall not have the intcaded effecl:. A certificate^ 
is a brrr againft all creditors, whether they have figned or 
aot, but dxey fliall not be deprived of their remedy againfl 

(0 5 G«. a. c. 30. § II* 


the bankrupt, \inlefs it is obtained agreeably to the di- 
rcftions of the ftatute. This is rto hardfliip on the bank- 
rupt. The certificate would not have cxifted, if it had 
not been obtained by means which the legiAature has * re- 
probated. The bankrupt fliali not derive a benefit from 
aös of others m hich the hiw has declared to be illegal 
and void» 

The rule difcharged [f 67]. 

[t 67] Vide, infva, 695. AW [3]. 




again ft 

[ 231 ] 

Armistead againfl Philpot^ 

/^N JVfdtjefday^ J^^^ the 1 6th, Kirhy moved for a rule, 
^^ to (hew caufe, why the fheriff of Middle/ex fhould 
not retain in his hands, for the ufe of the plaintiff, a fum 
of money which he had levied for the prefent defendant, 
hi another aöion, in which he was plaintiff. The ground 
of the motion was, that the plaintiff had not been able to 
levy on the efieÄs of the defendant, to the amount of 
his demand. 

The court, a^d bar, agreed, that this motion was of 
the firft impreflSon, and Lord Mansfield faid, he believed 
there were old cafes where it had been held, that the 
fheriff could not take money in execution, even though 
found in the defendant's fcrutorCi and that a quaint rea- 
fon was given for it, viz. that money could not be fold. 
However the rule was granted, and, this day. Bower 
having informed the court that he was inftrufted to oppofc 
it only fo- far, as that the attorney's bill, in the caufe in 
which the money had been levied, fhould be paid in the 
firfl place, it was made abfolute with that qualification. 

2ftd June* 

If a plaintiff 
cannot find 
fuflicient efTeflt 
of the defendant 
to fatisfy his 
judgment, the 
court will order 
the fheriff to 
reuin, for the 
ufe of the 
money which 
he has levied, 
in another 
a6lion, at the 
fuit of the 

MiLLES againß Fletcher. 

^"^HIS v/as an aftion on a policy of infurance, on the 
^ fhip the Hope^ and her freight from Montferrat to 
Londofu The plaintiff went for a total lofs. The defend- 
unt infifled that he was only entitled to reco\'er for an 
average lofs. The jury found a verdi£l for a total lofs, 
and, upon a motion for a new trial, the fafts of the cafe 
appeared to be as follows : — ^^fhe Ihip, when proceeding 
on her voyage, was captured on the 23d of May^ by two 
American privateers, who took the captain, and all the 
crew, and part of the cargo (which confilled of fugars) 
out of her. The rigging was alfo taken away. She was 
afterwards retaken, and jparried into Netu^Yoriy where the 
captain arrived on the 23d of June, and taking poffefTion 

Vol. L (J infurcd fhnll recover a« 

13d June. 

A fhip and 
goods being 
infured for a 
voyage, ifihc 
fhip is taken 
and on the 
re.capture the 
captain, A&wg 
fairly for the 
benefit of his 
fells the (hip 
and cargo, and 
therebv puts 
an end to the 
voyage, the 
for a total lofs« 


1 7 70. ^^ ^^'> found that part of what had been left of the cargo 
I J was waflicd over-board, that 57 hogfheads of what re- 

MiLLEs niained was damaged, and that the (hip was leaky, and in 
again ft fwch a ftate that (he could not be repaired without un- 
Flbtcher. loading her entirely. The owners had no ftore-houfes at 
NeiV'Tork^ where the fugars could have been put while 
the (lilp was repairing, nor any agent there to advife or 
direft the captain. No failcn's were to be had. The only 
method he had of paying the falvage, which amounted to 
the value of 40 hogOieads of fugar, was by fale of part of 
the cargo, or the Ihip. The captain did not know of the 
infurance. If he had repaired the fliip, his expcnces 
Would hare exceeded the freight by more than 100/. 
There was an embargo on all veflels at Neiv-TorkliW the. 
^^th oi December f and, by the deftination of his Ihip, (he 
was to have arrived at London in Juiy, Under thefe cir- 
cumftances, he confulted with his friends at New-Torky 
and rcfolved upon their opinion, and his own, to fell the 
(hip and cargo, as the moft prudent ftep for the intereft of 
his employers. The cargo was accordingly fold and paid 
for. The (hip was alfo . contrafted for, but the perfon 
who had agreed to buy her run away,' and the captain left 
her in a creek near Ne^-Torky and returned to England^ 
where he arrived in the February following, and gave the 
plaintiff notice of what had been done, which was the firft 
information he received of it, and the plaintifF immediately 
claimed as for a total lofs from the uridcrwritcrs, and 
offered to abandon. 

Lord Mansfield told the jury, that, if they were 
fatisfied the captain had done what was beft for the benefit 
of all concerned, they mud find as for a total lofs. 

The Solicitor General (hewed caufe, and was to have 
teen followed by Duuningy and Davenporty but Lord 
Mansfield flopped them. — itr, and Baldiviny for the 

Lord Mansfield, — ^The great objeft in every branch of 
the law, but efpccially in mercantile law, is certainty, and 
that the grounds of decifion fhould be precifely known. I 
took great pains in delivering the opinion of the court in 
the cafes of Gofs v. W^ithers (/), and Hamilton v. Mendes (1/). 
I read botli thofe cafes over laft night, and I think that 
from them, the whole law between infurers and infured as 
to the confequences of capture and recapture may be col- 
leäied. Wherever a queftion of law arifes at niji pritsSy I 
propofe a cafe, or grant one when alked for by the counfel, 
and I avoid as much as poifible blending faft and law 
together, having feen the inconvenience of it in Poole v* 


(/) M.^zCeo.z, zBurr.SS}. (u) T. i Geo. 3. 2 Burr. 11^. 

Since reported, i BlacJ^. 276, 


fitzgerald {y). But, on the trial of this caufe, it did not j 77g. 
appear to me, that there was any queftion of law, and no \_ - j 

cafe was afked for. It was impofiible to a(k for one, till Milles 
the faös were afcertained, and, when they were, it would againlt 
have been impolFible to Hate th^m in any way which could FLEXCHiRt 
have left a doubt on the law. It was not contended, that 
a capture mceßirily aiijounts to a total lofs as between in- 
furer and infured ; nor, on the other hand, that on a cap- 
ture and recapture, there may not be a total lofs, though 
there remain fome material tangible part of the (hip and 
cargo. Neither was it contended, that the captain has an 
arbitrary power by his aÖ, to make the lofs either partial 
or total, as he pleafes. A great deal has been faid about 
what the Admiralty could or would have doue in fuch a 
cafe, in order to pay the falvage. As to that, if no owner 
appeared, they would condemn the whole ; but if they 
faw from the fhip's papers, that there was one, they 
would not. If there were different claimants of the fhip 
and cargo, they would leave it to them to fay what part 
fliould be fold, and, if they differed in opinion, would 
order the fale of fuch part as would be attended with the 
fmalleft lofs. But all that is foreign to the prcfent queftion, 
which is fingly this, whether the confcquences of the 
capture were fuch as, notwithftanding the recapture, oc-^ 
cafioned a total obflruclion of the voyage, or only a partial 
ftoppage, a« in the cafe of Hamilton v. Metides, In that 
cafe, and in Gcfs v. IVitkerSy great ftrefs was laid on the 
fituation of the (hip and cargo, at the time when the 
infured had notice, at the time of the offer to abandon, 
and at the time of the action brought. No cafes fay, that 
the bare exiftence of the hulk of the (hip prevents the lofs 
being total. In Hamilton v. Mendcs it is laid down, that 
** if the voyage is loft, or not worth purfuing, if the 
" falvage is high, if further expence is neceflary, if the in- 
** furcr will not at 9II events undertake to pay that expence, 
" isfc. the infured may abandon, notwithftanding a re- 
** capture*" Here, at the time of the capture, there were 
no hopes of a recovery ; no friend's (liip in fight ; no 
means of refiftance \ all the crew was taken out, and part 
of the cargo ; and the rigging alfo taken away. After- 
wards the ftiip was retaken, and brought into New-Tbrk* 
When ftie was brought there, it ftill continued a total lofs» 
Ndther the infured, nor the infurers, had any agent in the 
place. The court of Admiralty muft have proceeded yJ»- t ^34 1 
cundum aquum ilf bonumy and might have fold her foi: the 
benefit of thofe concerned. When the infured firft had 
notice, and offered to abandon (which was when tlie cap- 
tain came to England )y and when the adlion was brought, 

(a») £.23 Ceo, 2, cited in Goß v. Withers, 


It was ftill a total lofs. The voyage was abandoned, tiie 
^_^^__^ cargo fold, and the ftiip left to be fold. The only anfwer 
Mill ES tlic defendant makes, or can make to this is, that the lof» 
•gain ft was total indeed, but that the captain made it fo by hi* 
Fletcher, improper condudt, for that, on his taking pofleflion of the 
{hip, the lofs became partial, and that he ought to have 
purfued the voyage. But is this .defence true in fa£l ? 
The captain, when he came to Neiv-Torkj had no exprefj^ 
order, but he had an implied authority from both fides, 
to do what was right and fit to be done, as none of them 
had agents in the place; and whatever it was right for 
him to have done, if it had been his own (liip and cargo, 
the under-writer muft anfwer for the confequences of, 
becaufe this is within his contrail of indemnity. Suppofe 
there had been no infurance, what ought the captain to 
have done ? i . As to the cargo ; according to the courfc 
of the voyage, the (hip fhould have arrived at London m 
July^ On the capture, part had been taken out, fome 
was waflied over-board, 57 hogfheads damaged, and the 
livhole, from the kakinefs of the veflel, in a perifliable 
ftate. There were no ftorc-houfes, nor could the fliip 
proceed in the ftate (he was in. The crew was gone, and 
an embargo laid on till December. What, (hall a cargo 
which was intended to arrive at London in July^ be kept in 
a perifhable ftate at Ne^a^Torkf in a leaky veflel, till De- 
cember F 2. As to the (hip*, it was certainly better to fell 
her, than bring her to Londott* There was no crew be- 
longing to her, and (he had no cargo. Even if all the 
cargo had been left, the expence of repairs would have 
exceeded the freight. If (he Had been brought home, the 
expence of bringing her might have been more than what 
(he would have fold for in London. It has been faid, that 
the damage would not have fallen on the under-writers 5 
but the argument drawn from thence is a fallacy, for that 
circumftance goes to determine it to be^the intereft of the 
infured to abandon the voyage. The point is, what did 
the owner fufFer by the capture, and it appears that he 
fuffered fo much, that it was not worth while to purfue 
the voyage. The whole voyage was loft. As the captaii» 
did not know of the infurance, he had no temptation to 
give the turn of the fcale to one fide or the other.^ lieft 
it to the jury to determine, whether what the captain had 
C 235 ] done, was for the benefit of the concerned. If they had 
found that it was in words, where would have been the 
queftioQ of law ? 

The mle difcharged [f 68}. 

tt 68] Fidi Bailli V. M^digiiani, Ref. 187. Mitchell v. Edie, B.ILiL 
t. R. H 25 Geo. 3. 1^ Casudet v. St. a? Geo. x, i Term Rtp. 608. 
Marht, B. R. £. 26 Geo. 3. iTerm 



Fisher, qui taniy &zc. againß ^easlhy. wcdnefday, 

'TpHIS was an aölon of debt on the ftatute of Queen If a Aim of 
^ Anne («;), for taking more tlian at the rate of five per money is lent 
lent, by the year, for the loan of money. The cafe was "P*"* ^" *" 
this : One Grlndall had borrowed 1 00 /. of the defendant, Si^^i^t^i ,-„. 
for which he had given him a bond conditioned for the tereft, and a 
payment of the principal and intereil, at the rate of 5 /. premium 
per cent, at the end of fix months. He alfo paid two gui- ^^^ ?"^ ^' 
neas to the defendant, as a premium, at the time when JheVthc^mo- 
the money was advanced. At the end of the fix months ney is advan- 
the capital was repaid, and 2 /. 10/. for intereft. The ce<d, fuch prc- 
aftion was brought Within a year after the payment of the f"J^I? "°^ ^\ 
capital and intereft, but more than a year after the two \^ th^\m\ 
guineas were paid, and the money advanced. Lord Mans- intereft, the 
FIELD, at the trial, was of opinion, that the ufury was fccurity is 
complete, and the penalty incurred, when the premium ^®*^' ^"^ ^^^ 
was paid, and therefore nonfuited the plaintiff [15]. i!Jc"uma tiU^^ 

On Tuefdayy the 8th of June^ Wood obtained a rule to more than le^ 
fliew caufe, why the nonfuit fhould not be fet afide, and gal intereft it 
a new trial granted; and, on Tnefdny the 15th of June^ aÄually re- 
the cafe was argued, by Bearcrofty and Wood^ for the plain- ^**^*"^ 
tiff, and the Solicitor General^ Dunning^ and Morganj for 
tlie defendant. 

For the defendant, it was contended, that the offence 
was committed at the time when the two guineas were re- 
ceived, and that it would have been ufury although neither 
the intereft nor the capital had ever been paid. That the 
contraft was not to pay 4 /. 12/. per cent, fot half a year, 
but to give two guineas for the loan of a fum of money, 
for which legal intereft was alfo to be paid. Lloyd v. JViU 
Hams {x) was cited, and a cafe of Mallory v. Bird^ men- 
tioned in Pollard v. Scoly {y)^ where it is faid, " That if a [ 236 ] 
*' man contraft to have twenty pounds for the loan of a 
** hund ed, and take nothing, he is not punifhable by 
" the ftatute (2), but if he taketh any thing, if but one 
*^ (hilling, this is an affirmance of the contraä, and he 
** fliall render for the whole contraft." 


{iv) 12 2. c. 16. 250. fmce reported in 2 Blackfl, 792. 

(15] Byy?. 31 Eliz. c. 5. § 5. all ^ui Cy) ^- ^- ^- «S ^^- ^^^' ElJ'zo. 
fam adions upon any ftatute made or {%) 13 £//«. r. 8. That ftatute re- 

to bemflde (except the ftatute of tillage) vived the ftatute of 37 H. 8. f . 9. and 

fliall be brought ^within one year after the words there arc, that the penalty 

the offence committed. fhall be incurred if the party *« baive, 

{x) C. B.U. iz Geo. 3. 3 ffil/. " recei've, accept, or taJ^e,** &c. § 3. 5. 



BuLi.ER, Jußice^ faul, that the anfwcr given by AsTON, 
Jußiccy to that cafe, when it had been cited on feme 

Fisher. former occafion, was, that it meant one (hilling above the 
againft legal inter^ft. 
Bi^ASLEY* For the plaintifF, it was obferved, that the cafe of Mal- 

lory V. fiird is only a loofc notie of the reporter. That 
there are two diftin(^^ provifions in the ftatute of Queen 
Anne. i. That all bonds, contraös, and affuranccs for 
the payment of any principal, or money, to be lentj^ where-» 
upon or whereby there • fiiall be refer^^ed or taken above 
• 5 per cent, fliall be utterly void. 2. That all perfons, who 
fhall upon any contraft, take^ accept^ and receive for the 
forbearing or giving day of payment, more than at the 
rate of 5 per cent, per annutny ihall forfeit treble the fum 
lent. That under the firft, the ofFence is complete as foon 
as the contraft is made, though nothing has been paid for 
the loan ; but, to incur the penalty, more than the legal 
intereft muft have been aBually received. That the contraft 
here was to forbear for {vn months, and 2/. is. which 
was all that had been taken, accepted, and received, more 
than a year before the bringing of the aftion, was lefs than 
at the rate of 5 per cent, by the year ; but that, when the 
additional 2/. 10/. was paid, then, and not till then, the 
offence for which the penalty is given, was committed ; for 
that, till the payment, the law allowed the party time to 
repent, and to avoid' incurring the penalty by relinquilhing 
the ufurious intereft. They cited Brown v. FuIJhye {a\ 
where it was held, that when for the loan of 80 /. a bond 
was given to pay 90 /. at the end of the year, the penalty 
for taking more than i o /. per cent, (the legal intereft at 
that time,) was not incurred, although the 90 /. had been 
tendered, bejaufe the lender had not aftually taken and 
received more than the legal intereft •, but that the fecurity 
was void ; Body v. Tajfell {h\ Martin Van Hanbeck's Cafe 

r 237 ] (^)> ^^^^ Hawkins's Pleas of ihe^Crowny title Ufury (J)^ 
where the fame diftindlion is made, were alfo cited. 

The court took time to confider, and this day, Lord 
Mansfield delivered their opinion, as follows : 

Lard Mansfield, — It became material, in this cafe, to 
determine, when the ufury was complete. One fide con- 
tended, that it was fo upon the payment of the premium, 
and I long inclined to that opinion, becaufe it was paid eo 
nomine as above legal intereft [(0*]. But I am now fatif- 


(a) C. B.T. 19 EL 4 t^on. 43. ^ommiffion, agreeable to the ufagc, 

(h) Scacc. T. 30 EL 3 Leon, 205. upon the amount of the bill. Benfom 

(c) Scacc, ST. 30 EL 2 Leon. 38. v. Parry, B. R. M. ai Geo. 3. 2 Term 

{d) B. \. c. 82. § 8. Rep. 52. mnch. v. Fenn, G. H. Sit- 

[1^] It is not ufury for a country tings after H. z6Geo, 3. cor, BulUri]. 

banker in diicounting bUls to take over ibid. n. (r), 

and above the 5 per cent, dikount, a 


fied, as we all are, that the offence was not complete till 

the half year's in.tereft was received. There are two 

branches of the ftatute. Under the firft, every agreement, Fisheii 
contraö, and fccurity, for more than legal intereft, is again^ 
void. Therefore the bond given to the defendant in this Be as ley* 
cafe was void. But under the fecond, the penalty is in- 
curred only by takings acceptingy and receivings more than 
legal intereft. All the authorities lean this way, both an- 
cient and modern. In Lloyd v. Williams more than legal 
iptereft had been paid at firft. 

The rule made abfolute. 

The End of Trinity Term 19 Geo. III. 


I 238 ] 



Court of king's BENCH, 

I N 

Michaelmas Term, 

In the Twentieth Year of the Reign of George III. 


6th Nor. 
If a plaintiff 
the debt and 
cofti with the 
before the 
plaintiff's at- 
torney has 
been paid» 
the court will 
not oblige the 
defendant to 
pay him» un« 
ieis he gave 
notice to the 
not to fettle 
with the plain* 
tiff till hts bill 
fliould be paid. 

Welsh againß Hole. 

I^N a rule to (hew caufe, why the defendant (bould not 
^^ pay to the plaintifPs attorney his bill of coils, the cafe 
was this : In an adlion of afliiult there was a verdift for 
the plaintiff, damages 20 /. judgment, and a writ of error 
brought. Pending the writ of error, the plaintiff per- 
fonally compromifed the debt M'ith the defendant (who had 
lain in jail two years) and executed a releafe ; having ac- 
cepted of ten guineas for the debt and cofts. 

The Solicitor General argued in fupport of the rule,-* 
Cowper for the defendant. 

Lord Mansfield,— An attorney has a lien on the money 
recovered by his client, for his bill of cofts : if the money 
come to his hands, he may retain to the amount of his 
bill (a). He may ftop it in tranjitu if he can lay hold of 
it. If he apply to the co\irt, they will prevent its being 
paid over till his demand is fatisfied. I am inclined to go 
ftill farther, and to hold that, if the attorney gave notice 
to the defendant not to pay till his bill fliould be difcharged, 
a payment by the defendant after fuch notice would be in 
his own wrongs and like paying a debt which has been af- 

{a) Vidt fupra, p. 104. 



figned, after notice. But I think wc cannot go beyond I77Q, 
thefe limits. Though there may be fome room to think ; _| 

that there was collufion here to cheat the attorney, yet, on Welch 
the other hand, ten guineas may be a reafonable conipen- agajoft 
fation from a man who has lain tv/o years in jail. Befides, Hol£« 
this application goes to the extent of controverting the va- 
lidity f){ a payment of the ivMd debt and cofts to a plain- 
tiff without the privity of his attorney, and it would be too 
muc^^to fay, that a defendant fhall not tranfadl the bufinefs 
of a caufe with the plaintiff himfelf, in a cafe where there 
has been no notice not to do fo from the attorney, either 
cxprefs or implied — nothing even like faying, " I have no 
** fecurity for my bill," or, •* I fhail never be paid unlefs 
** the plaintiff recover in this aftion." 

The rule dilcharged fCCj*]. 
[&] yUe Grißn v. Eylcs, C. B, H. 29 G^o. 3. H. Bl. 122, 

The King as:awß Stratton and Others. Thurfdiy, 

"^ •^ nth Nov. 

AN information had been filed ex oßido^ by the Attorney xi,« po^rt 
General^ in confequence of a reiolution of the Houle will not give 
of Commons, againft the defendants, for imprifoning the ^^^^ ^^ H"afh 
governor (Lord figot) and fubverting the government of ^^^ ' fi?T^' 
the fettlement at Madras^ where they were members of the ^^ hy rhc 
Council. The defendants had pleaded, and the parties Attorney Gc- 
were at iffue, and notice of trial given for the Sittings after neral.— He 
lafl term; but the profecutor countermanded the notice, "roceedfn^*** 
and, on 'Juefday the 9th of Ncvemba-^ the ScHcitor Gt/wral upon it l^ 
applied for a rule to fliew caufe, why the information moH profequi, 
(hould not be quaflied, fuggefting as the ground of the »"** fiic an« 
application, that another was ready to be filed, which ^^^^^* 
ftated the offence more particularly, and was better adapted 
to the nature of the charge. The rule was granted, and 
caufe was, this day, fhewn, by Diinnirigy Wtlfoftj Arden^ 
and Erßitje. 

They faid, there never had been an application of this 
fort, but that, in the cafe of Rex v. Philip Carteret If^ebb 
(fl), where the profecution was by indiftment, on a mo- 
tion to quafh the firfl, another having been found, the 
court would not permit it, but upon terms, and by con- 
fent; and (aid, that it was by no means a motion of courfe. 
That, in all cafes where indiftments have been quaflied on r 240 1 
the motion of the profecutor, it has been on the ground 
of inftiffidencj (Ä), which was not pretended in tlie prefent 


(a) E,/^Gco. 3. 3 Burr. 1468. Since H, 4 Car, i Cro, Car, 147. Rex r. 
reported, i Blackß. 460. S-wan k Jeferys» Faß, 104. 

{,h) Fide Sir miliam fVitbifok's Cafe, 


1 770. inftance. That in the cafe of Rex v. Purnell (r), which 
> _ f was an information filed ex officio by Sir Diidley Ryder ^ then 

The King Attorney General^ againft the defendant as vice-chancellor, 
•gainft and a juftice of peace in the univerfity of Oxford^ the At* 
St RAT TON. tortuy General had put an end to the firft information, with- 
out any application to the court, by a noli profequi ; but fliat 
he had done this on the exprefs order of the King, which 
order was ftated in his warrant to the mafter of the Crown- 
office (rf) to enter the noli profequi. That, at all events, the 
court would not grant the motion without obliging the 
profccutor to pay cofts (<?). 

The Solicitor General^ in fupport of the rule, obferved, 
that the defendant could not fuffer any injury by the 
quafliing of the information, becaufc the crown might go 
on to trial, and judgment, on the new one, notwithftand- 
ing the pendency of the other 5 for that, on indi£l:ments or 
informations for crimes^ the pendency of another profecu- 
tion for the fame oflence cannot be pleaded, as it may to 
informations for penalties [f) [i]. He faid, that leave to 
quafti indictments is often granted in tlie firft inftance, 
without a rule to fliew caufc. 

Lord Mansfield having afked the Solicitor General if 
there was any authority or precedent for quaftiing an inform- 
ation ex offictQ upon the application of the profccutor, ho 
admitted, that he knew of none ; and his Lordfhip (aid, 
that if it was proper to ftop the information, he aid not 
fee why the Attorney General might not do it by entering a 
tioli proßqtiiy without the interference of the court. 

BuLLER, y/£/?iV<',— What the Solicitor General has ftated^ 
viz. that the pendency of the firft information would be 
no pica to the fecond, is decifive againft this motion. It 
is certainly not of courfe to quafh informations. AH the 
[ 241 3 litigated cafes are upon infußciency^ and, if the court 
has even permitted it in the firft inftance, it has been 
bccaufe they gave credit to the counfel in ftating the 

The rule difchargcd. 

(r) I Wilfon 239. Since reported, information out tam, and cites Cro. EL 

1 Bluckfl. 261. I Roll. Rep. j^g, 50. 134. But 

{d) Sir James Burrtnv. he fays nothing on that point as to other 

(#) //. Geo. 2. Rex v. M^ri. informations. \n B. 2. c, 34. § i. he 

% Str. 946. fays, generally, that another profcco- 

{f) Sir William irithipole^% Gafe^ don depending is no good plea to air 

Rt9c V. StuuH Sc Jejerys. indidUnent, as it is to an appeal or in- 

[i] Hawkins, (B. 2. r. 26. S 63.) formation \ but he refers to the former 

fays, that another information depend- pafTage, and therefore probably mcan^ 

ing may be pleaded iu abatement to an only ^ui tarn informations. 



Right, Leflee of Cater, againß Price j^'^^^y» '*^** 
and Others. 

TTPON an ejeftment, tried at the laft Aflizcs for the If a tcftator 
^ county of Glouceßer^ a fpecial cafe was referved, which »* »n a ftatc of 
ftated the following fafts : On the 5th of December 1777, '"fenß'j^fJ 
one Bridges was fent for, to make the will of one JVyaU u a'twftn'^ihe 
Cater, (under which the defendants claimed,) and. received will is rwt 
his direftions accordingly. It was prepared on five (heets, du*y exccut- 
and a feal affixed to the laft, and alfo the form of the ^^ according 
atteftation written upon it. The will was then read over ineJf?h?rta. 
to the teftator, in the prefence of the three witnefles who tute of frauds, 
afterwards fubfcribed it, (one of whom was Bridges, J and although he 
he fct his mark to the two firft flieets, in th^ir prefence, ^"^ c^/poraUy 
and attempted to fet it to the third, but, being unable from P'"*^^*"^^ 
the weaknefs of his hand, he faid* ** / canU do it, but it is 
my wi//J^ After this, the three witnefles went away, being 
defired to come again. On the day following, Bridges^ in 
the prefence of two other perfons, not being the two other 
fubfcribing witnefles, faid to tj^e teftator, " fVi// you ßgn 
your ivill ?^^ He faid, he would, and again attempted to 
fign the two remaining (heets, but was not able. Then 
Bridges went away, and returned the next day with the 
two other fubfcribing witneflxis, when the teftator being in 
a ßate of infenjibility. Bridges proceeded to write the form 
of an atteilation on the fecond fheet, and he and the two 
other witnefles put their names to it, in the room where 
the teftator lay. He died two days afterwards. — ^The quef- 
ftion was, Whether this will was duly executed for palBng 
lands, according to the ftatute of frauds ?— The leflÄr of 
the plaintiff was the heir at law. 

(The words of the ftatute are, " That the will (hall be 
** figned by the devifor, or by feme other perfon in his 
^* prefence^ and by his (jxprefs direöions, and (hall be 
** attefted and fubfcribed in the prefence of the faid devifor, 
** by three or four credible witnefTes {a)y* 

The cafe was argued, by Cowper, for the plaintiff, and [ I42 3 
Adair, Serjeant, for the defendants. 

Adair mentioned, before the argument, that the cafe 
was imperfeft, in not ftating, as the f^^ was, that all the 
five fheets were in the room, and annexed to each other, 
at the time of the difi^erent fubfcriptions ; but Lord Mans- 
field faid, he had no doubt it wa§ fo, fron^ the manner in 
which the cafe was drawn up, and defired Cowper to go 
on, as if that had been exprefsly fet forth, 


{a) 23 Car. l* c. 3* § j* 


1 770« Co^ivpery — ^This will was not attelled agreeably to the 

l_ _ J ^ meaning of the ftatute. In Shires v. Glafcock (/i), the will 

Right was figned by the witnefles in an adjoining room, having 

again ft a window, which was broken, between it and the room 

Price. where the teftator was, and it is exprefsly dated, that he 

might have feen the witnefles. The realon for requiring 

the atteftation in the teftator's prefence is there mentioned 

to be to prevent the obtrufion of another will. There had 

been fcveral other cafes of the fame fort, where, if the 

teftator could fee the witnefles fign, the court has prefumed 

that he did. But here the teftator being in a ftate of infen- 

fibility, he could not poflibly know what was palling. He 

•was indeed corporally prefent, but his mind was not there, 

no more than if his dead body had been in the room. . 

AdaiKy Serjeant— It does not clearly appear what is 
meant by the word " inßtißbility!^ It is certainly fome- 
thing confiderably (hort of deatli, and, if the teftator was 
alive, I do not fee how it can be faid, that the will was 
not atteftcd in his prefence. The queftion is. Whether the 
teftator, having done all that was ncceflary on his part, 
(for nothing is difputed but the validity of the atteftation,) 
and the atteftation having been made according to the 
ivords of the ftatute, a fair tranfaftion fliall be jfet afide, 
becaufe a formality required according to an implied inten- 
tion of the legiflature has not been complied with ? The 
court has been very liberal in conftruing the formalities 
prcfcribed by the ftatute. Adlual figning is one of them ; 
yet that has been difpenfed with, as appears by a cafe in 
Skynner [b). * As to the atteftation, the exprcffion at the 
end of the cafe of Shires v. G hfcock - (ccms to go farther 
than the line drawn by Mr. Confer ; for it fays, the fign- 
ing of the witnefles would be fuflicient, although the tef- 
[ 2L43 ] tator fliould be fick in bed, and the curtain drawn. In 
fuch a cafe, he could noty by any reafonable prefumption, 
be fuppofcd to have it in his power to fee them. Even in 
the prefent cafe it does not appear, but that the teftator 
might, by poiFibility, have opened his eyes, while the 
witnefles were fubfcribing their names. If he had been 
perfeftly in his fenfes while he figned, and till they began 
to attelt the will, and had then been fcized with a delirium^ 
would not the atteftation, if completed immediately, have 
been fufiicient ? The principal intent of the aft, in requir- 
ing the folemnity of the atteftation by witnefles, is truly 
ftated in Shires v. Glafcock^ viz^ to prevent the obtrufion of 


[a) C.B.E. 3 Jae. 2. 2 SaiL Fidc,VL\{o,Le Mayne y. Stanley, C.B,E. 

688. S. C. in Car/L 8i. 33 Car, 2. 3 Ltv. I. S.P. «^" The 

(6) B. R. H, 36 $c 37 Car. 2, fcaling is a figning." Diä. pcfHWr^ 

3 %w. 227. The will in that cafe was Ch. % Lee v. LiUy B, R. M. 1 ^, 

aJI written by the teftator's own hand, ^ M. i Sh. 68, 69. 


another will for the tru^ one ; but there was no danger of 1 770, 

that fort here, fince tlie teftator had aftually figned the ^ U * ^ 

will he meant to execute before he became infenfible* I Right 
have been informed of a cafe which was before this court again (I 
very lately, by a gentleman who was counfel in it, in Pmcs« 
which the word " pnfcnce'^ was conftrued to mean aäual ' 
corporal prefence. It was a quo ivarranto from Plymouth*, 
By the charter of that borough, fcven aldermen muft be 
prefent when a new one is elefted. To make up that 
number, at the election the legality of which was quef- 
tioned, one who had been in a Hate of abfolute idiocy for 
fcveral years was brought to the hall, and it was field, 
that this was fufficient to fatisfy the charter ; and tlie 
court refufed either to grant an information, or an ifliie to 
try the fanity. • 

Lord Mansfield, — ^Tlicre are many particular circum- 
fiances in this cafe befides the general queftion. "^rhe tef- 
tator, when he figned the two firft iheets, had an in- 
tention of figning the others, but was not able. He there- 
fore did not mean the fignature of the two firft as tlic 
fignature of the whole wHI. There never was a fig-, 
nature as of the whole. '^Tlie court, fo be furp, would 
lean in fupport of a fair will, and not defeat it for a 
flip in fonny where the meaning of the ftatute had been 
complied with. It was upon that principle that Shires v. 
Glafcocky and other cafes of that fort, were decided. But 
this is not a meafuring caft, where there is room for pre- 
fumption. All the witneffes knew, at the time of the at- 
teftation, that the teftator was infcnfible. He was a log, 
and totally abfent to all mental purpofes. It was no fuddcn 
delirium, or fufpenfion of the underftanding. In fuch a 
cafe, perhaps, the court would lay hold of a very flight 
prefumption. Another thing : it is ufual in precedents of 
wills to fay, that the witnefles fubfcribed at the requeß of 
the teftator. That indeed is not expnjly required by the . 
ftatute, but the praftice ftiews the general underftanding, [ 244 1 
and the nature of the thing implies a requeft. 

WiLLEs, and Ashhurst, Jujlicesj of the fame opinion. 

Bui.LER, Jußicey — I am of the fame opinion. The at- 
teftation in the teftator's prefence is as eflential as his fig- 
nature, and all muft be done while he is in a capacity to 
difpofc of his property. &hires v. Glafcock was determined 
foon after the ftatute pafied, when the reafon and mean- 
ing of the claufe in queftion were exaöly known. Here 
the trunk remained, but the man was gone. He could 
not know whether the will that he had begun to fign was 
that which the witnefles attefted. He was dead to all pur- 
pofes or power of conveying his property. As to the 
figning of the teftator, it has never been and cannot be 
difpenied with. The courts have only had occaiion to de- 
% cide^ 


cide, in different cafes, what fhall be a figning within the 
true meaning of the ftatute [2]. 

The Poßea to be delivered to the plaintiffl 

[2] The ftatute of frauds is often fup- 
pofed to have been made upon great con- 
fidcration ; on an attentive perufal, how- 
ever, it will not appear to have been 
very accurately penned. It is I believe 
oniverfally underflood to be the mean- 
ing of the ftatute, that the teftator muß 
ßgn in the frefenct of the fubfcribing 
lAiitneJfes [l^]. Yet there Js no ex- 
prcfs provifion for that purpofe in the 
daufe (§ 5.) defcribing the folemnities 

which are to attend the execution. It 
is as univerfally underftood that an ex- 
prefs written revocation muft be exe- 
cuted with the fame folemnities as an 
original will ; but, in the clauf<^ (^ 6.) 
relative to fuch revocadont, the fub- 
fcripthm of the witneftfes is not dire<^ied» 
while, on the other hand, the figning 
by the feflator in their pre/ence is m fucti 
cafe exprefsly prefcribed. 

[l^] But Fide Gray/on v. Atkinfon^ 
Cane* 1752t where Lord Hard^icke 
determined, that it is not neceffary, in 
the cafe of a. will, that the teftator 
fhall fign in prefence of the witnefFes ; 
and that it is fufficient if he acknow- 
ledge hb hand-writing to them al), 
though at different times. 2 Ve%, 45-1. 
See, alfo, 3 Mod, 218. & Lee\, Libl, 
B. R. M.ifF.tff M. I Shoav. 68, 69. 
Di^* per Do/bin, S, P, and Stonehoufe 
Y. Evelyn, Cane. E. 1 734, where the 

fame was determined by Sir Jo/epl^ 
Jckyll, 3 i>. W. 252. And in Ellis 
V. Smith, Cane. H, ^ M. 27 Geo. a. 
Lord Harduoicke, affiftcd by miUs, Ch. 
J. Strange^ Mafter of the Rolls, and 
tne Chief Baron, decided that a will at- 
tcfted by three witneifes, in the pre- 
fence of the teftator, and acknowledged 
by him in their prefence to have been 
figned and fealed by him^ but not /igned 
in their prefence, was a good reroca-« 
tion of a former will under ^ 6. 




Aaioni for A FTER a verdift for the plaintiff in an aftion, in this 

ufcandoccu- XX court, for ufe and occupation, the damages being 

Ec maintained ^"^Y ^ '• 1 ^' ^ ^* Baldwin obtained a rule to fhew caufe, 

in the court of why the defendant fliould not have leave to fuggeft on th6 

confcience in roll, that the damages recovered were under 40 s. and that 

the defendant, at the time when the aftion was brought, 

was an inhabitant, Ö'r. in the city of London^ and liable to 

be fued in the court of confcience there, under the ftatute 

3 ^^r. I. r. 15. [I]. 

r 24J ] I'bat ftatute (fe5l» 4.) enaös, that if it (hall, in any 

aftion of debt or ajfumffit profecuted any where out of the 

faid court of requefts, appear that the debt to be recovered 

doth not amount to 40 /. and the defendant [2] fliall prove 

I t by 

[1] This was the firftof thofe courts 
of fummarv jurifdiftion called courts 
of confcience. It had been erefted 
before, but did not receive the fandion 
of the legiflature till this ftatute of 
7«f. 1. 

[2] By § 2. /-&^ right of/uing in this 
court, is only given to ** cv,?ry citizen 
and freeman or any other perfon inha- 
biting within the city or its liberties» 
being a viflualler, tradefman, or la- 
bouring man," againfl perfons of the 



by fufRcicnt teftimony, or his own oath, thiat he -w-as inha- | y^g, 
biting and refiant in London^ or the liberties thereof, when ^ Ly j 
the a£^ion was commenced, the plaintiff (hall not have 
any cofts of fuit, but fliall pay the defendant his cofts. agaioft 
But, hyßcl. 6. it is provided, that nothing in the ad ihall CLOuruAir« 
extend to " any dek for any rent upon any leafe of lands 
** or tenements, or any other r^ai contra^s^ or any other 
** debt that fliall arife by reafon of any Caufe concerning a 
** teflament or matrimony, or any thing concerning or pro^ 
** perly belonging to the eccIcfialHcal court." 

Dunning now Slewed caufe. He infiflcd, tint this cafe 
was within the exception, the words of which are. nut 
** any aStion of debt for rent^* but " any debt for rent /* 
and therefore the fubllance not the form of tlie action was 
Avhat the legiflature had in view, the intention being to 
prevent queftions of title from coming before this in- 
lerior jurifdi£lion. He mentioned a fimilar cafe which 
had been before the court fome time ago, on the flatute 
crcöing the court of rcquefls in the Tower Hamlets [a), m 
which there is an exception {b) in the very fame words with 
that in the aft of James I. 

The Solicitor General^ and Baldwin y argued in fupport of 
the rule. They flated, that fuch aftions had been ufually 
brought in the city court of confcience, and contended, 
that, by ** other nal contracts ** was meant, covenants for 
rent by deed, and that the exception only extended to C .^4^ 1 
aftions for rent upon fpecialties. 

Lord Mansfield, — It may have been ufual to brinij 
fuch ä<flions in the city court j if the defendant: makes no 
objeÖion, the caufe proceeds' of courfe ; i)ut there is no 
inflance where the point has been litigated, and the jurif- 
diöion allov/ed. The title may come in queftion in this 
fort of aöion ; if brought, for inftance, by a devifee or 
purchafor. We think this cafe is within the exception; 


fame dcfcription. The 4th fcdlion, I191. the fuggcilioii fiated both the 

which gives the defcridant coils when plaintiiF and detendant to be citizens of 

the damages arc under 40 1. makes it Londun, The atlidavit in this cafe of 

nccefHiry for him to prove that iv was IFocUej v. Chutman^ Hated only the 

inhabitant and refinnt of the city as u£fenäani*% rc^fiancy, and the rule did 

ahovey but fays nothing reHriiitive of not go to the fuggelHon on the roll of 

the dcfcription of the plaint i_f. How- any thing t(»uching the plaintiff^ % de- 

evcr, I fhoiild fuppofj both claufesmull fcription, or where he inhabited.— By 

be taken together, and that the defend. 23 Geo, t, cap, %o, which eilablifhed 

ant ought to fhew that thr plaintiff was t'\e couit of the J'o-uuer Hamlets^ there 

filch a pcrfon zs is auihorifed by § 2. to is no rellrldicn as to the plaintiff, and 

fue in the city court. So it fet^ms to any perfon may be fucd who refides, 

have been underilood in Hickman v. keeps a (hop, flied^ flail, or fland, 

Colley, B» R, M. 13 Ceo. 3. 2 Sfr, feeks a liveliiiood, or trades, ordeals» 

1 1 20 ; and in BrampiOn v. Cab, B,R,H^ witiiin the dillrift ( § 5 .) 
3 Geo, 1. 1 Sir. 46. and Pitts v. Car- {a) 23 Geo, 2, c. 30. 
featir, B. R. T. 16 Geo. 2. 2 Str. \b) ^ ao. 




and, in the* cafe alluded to by Mr« Dunning^ wc had all 
formed the fame opinion ; but it was compromiicdi It 
was trefpafs againft the officers of the court of confcience 
of the Tower Hamlets^ for taking goods fn execution upon 
a judgment in that court [i]. 

BuLLER, Juß'ice^ faid, the conftruöion put upon the 
words " real contraHf^' was very improbable, becaufe, at 
the time when the aft paffed, it was not ncceflary that 
leafes iliould be in writing, much lefs by deed, which even 
yet is not required. That, before this a£lion for ufe and 
occupation came to be ufed, (after n Geo. 2. r. 19. $ 14.) 
it was common to bring debt for rent on parol leafes. 

The rule difcharged [a) [+ 69]. 

B arrows f infra 250, and Wiltpirc v. 
Lloyds infra 366. 

[ 1 69 J ^'»^^ Stean v. Holmes » C. B. £• 
II Geo. 3. 2 Blackft. 754.. 

f i) By 23 Geo. 2. c 30. § 1. exc- 
cutioa is given againll the body or 

(fl) Fidfatit next cafe, Jilivaj v. 

Monday, 15th 

If an a£Vion 

of tjfuwffit is 

brought a«^ 
sainit an in- 
habitant of 
MiadUfex by 

an Bdminißra' 

tor, and the 
«iamages found 
are under 4X> t, 
the defendant 
is intitled to 
have thai 
fuggefted on , 
the roll in the 
fame manner 
as if the plain- 
tiff had fued in 
his .own right. 

•C247 3 

{a) fFoolUf 
944. jfilwajf 

Wase, Adminiftrator, a^ainß Wyburd. 

'TpHLS was an aftion of ajpsm^i upon a running account, 
'*' and the ftatute of limitations being pleaded, it ap- 
peared, on the trial, that none of the items were within 
the ü\ years, except one article of 10/. and the plaintiff ac- 
cordingly had a verdi£l only for that fum. The defendant 
having applied for leave to fugged on the roll, that he 
lived, at the time of tlie aftion brought, in the county of 
MidJlefexj and was liable to be fummoned to the county 
court under tlft ftatute of 23 Geo. 2. c. 33. by which, in 
fuch cafes, the plaintiff is not to have his cofts, but to pay 
double cofts to the defendant« A rule to fliew caufe was 

Howorth now (hewed caufe, and contended, that this 
cafe was not within thp meaning of the aft, as perfona 
fuing in the * charaöer of adminiftrator or executor, afc 
not liable to the payment of cofts even where there is a ¥cr- 
dift againft them. 

The Solicitor General^ on the other fide, infifted, that the 
defendant had a right to the Xuggeftion whatever confe- 
quence it might have, and faid, that if it fliould not entitle 
him to cofts from the plaintiff, it would exempt him from 
the payment of cofts. 

Lord Mansfield alked if there was any exception as to 
adminiftrators in the ftatute, and it appeared that there is 
OP fuch exception. 

The rule made abfolute [a). 

V. Cloutmans fupra, p. Wiltjbirc V. lAojd» infra 3S1. 
V, Bfirrews, infra 263. 

m TUE tWSiiTtElii tEAft OF GEÖkGE llL 

Dingwall againß Dünster* nov"*^**^!*^^** 

^HE plaintiff, as indorfee of a bill of exchange for f„°*J^'"^|^^^ 
^ 400/. datecl loth July 1774, and papble in five claSiby' 
months, brought an aöion of affum^t againft the defend- the holder 
ant, as acceptor. The caufc came on to be tried before will dii'charge 
Lord Mansfield, at the laft Sittings for MiddUfex, when ^f^jj*"T°]p 
two forts of defence were fet up. i. That tne bill was ^changc.° 
given for money won at play. 2. That the plaintiff by his 
conduft, (though not in exprefs terms,) had agreed to dif- 
charge the acceptor, and feek his remedy only againil the 
drawer. To prove that the money was won at play, the 
defendant's counfel called the drawer, (one WheatCyJ who 
had been discharged under an infolvent debtors' a£l ; but, as 
his future efieäs ftill remained liable to the debt, his Lord- 
Ihip rejefted him as an inadmillible witnefs [f 70] ; and 
the caufe went to the jury only on the other queftion [i]. 
They found for the defendant ; upon which the plaintiff 
obtained a rule to (hew caufe why there fhould not be a 
new trial, which came on to be argued this day. The 
moft material faös of the cafe were as follows : The bill 
^vas accepted by the defendant, merely to lend his credit^ 
and accommodate the drawer. Fitzgerald^ the payee, [ 248 3 
indorfed it to the plaintiff, and delivered it to him, in 
payment for jewels. After it became due, the plaintiff, 
underftanding that the acceptor never had any confidera- 
tion for accepting it, and that Wheate was the real debtor, 
wrote to one Ready ^ (Wheate's attorney,) on the 6th Ft^ 
hruary, and on the 4th of November 1775, prefling him for 
the payment* Dunßery on the 13th of February 1775, 
wrote a letter to Dingwall^ thanking him in ftrong terms 
for not proceeding againft A/V«, but mentioning in the 
fame letter, that he had been informed by a perlon who 
had been fent from him to Dingwall on the buGnefs, that 
W'heate had taken up the bill, and given another, to Ding^ 
walPs fatisfa£^ion. It did not appear that Dingwall took 
any notice of that letter. Dingwall for fome time received 
intereft upon this bill from Wheate, and alfo the principal 
due by another bill, which was made at the fame time, 
and drawn and accepted by the Came parties, and under 
like circumftances. The plaintiff fuffered fevcral years 


[t 70] ^MXi^vide Abrahams, qui tam$, the plaintiff, though an innocent in- 

V. Bunn, B. R. T. 8 Geo. 3. 4 Burr, dorfec for a valuable confiderationi 

2251. Fide the cafe of Bower v. Bampton, 

[i] If it had been proved, that the B. R. T. 14 Geo. 2. 2 $tr. 1 155. and 

bill was for money won at play, it Lowe v. Waller, 7*. 21 Ge§. 3. infre^ 

would have been void in the hands of 736. 

Vol. I. R 


I77Q« ^^ elapfe without calling upon Dunßer^ or treating him at 

X_ - J his debtor. 

Dingwall Dunning^ and Cowper^ in fupport of the verdiä. — The 
af^ainft Solicitor General^ Peckham^ and Baldwitiy for the plaintiff. 

Du MST ER. For the defendant, it was argued, that the holder of a 
bill of exchange may difcharge the acceptor without receiv- 
ing payment, or delivering up or cancelling the bill. That 
fuch difcharge may be implied as (Irongly from circum- 
ftances in the conduA of the holder, as if he had exprefled 
it in dired words. That the queftion was a mere queftion 
of faft, to be determined by a jury ; and the behaviour of 
the plaintiff in this cafe (hewed clearly, that he had aban- 
doned all recourfe aeainft the acceptor. They cited a cafe 
of Black V. PeeUy which was firft tried before Lord Mans- 
fiELD, and afterwards before De Grey, Chief Juftice^ and 
alfo Walpole and others v. Pultenep in the court of Exche^ 
quer^ which had been tried a few months ago, and in 
which, they faid, there had been an implied difcharge of 
the acceptor, and, upon that ground, (the jury having 
found a verdi£t for the plaintiff) the court had granted a 
new trial. 

On the other fide, it was infifted, that there was no cafe 
where any thing fliort of an exprefs difcharge had been held . 
to preclude the holder from having recourfe upon the ac- 
ceptor. That filence towards him, for any length of time 
within the years prefcribed by the ftatute of limitations, is 
not enough. The holder may proceed againft a drawer or 
indorfor, (if he has given proper notice of the non-payment 
C 249 ] by the acceptor when the bill fell due,) and recover part 
again fl him, and yet recur, for the remaining part, to the 
dsawer. In the cafe of Black v. Peele^ there was an exprefs 
difcharge. The cafe was this : One Dallas was the drawer, 
Peele the acceptor, and Black an indorfee. Black arretted 
PeeUy but finding that no confidcration had been given for 
the acceptance, his attorney took a fecurity from Dallas^ 
and fent word to Peele^ " that he had fettled with Dallas^ 
'* and he need not trouble himfelf any further.** Dallas 
afterwards became a bankrupt, and then Black demanded 
payment of Peele. In Walpole v. Pulteney^ a book of the 
plaintifPs own was produced, in which the bill was en- 
tered, and over againfl it this memorandum, ** Mr. Pul- 
** tetiefs acceptance annulled [2]." 

Lord Mansfield, — ^There is no doubt but a holder of a 
bill may difcharge any of the parties, but there is this dif- 

[2] That cafe was tried, a fccond fwore, that Walpole had pofitively a- 

timc, at Guildhall^ at the Sitdngs after greed to confidcr Pulteney's acceptance 

this term, before Skynner Chief Baron, as at an end. The jury found for the 

when Alexander, who had indorfed the defendant. WalpoU had kept the bill 

bill to Walpole, was produced as a wit- from 1772 to 1775» without calling 

apfs on the part of the defendant, and upon PJtemy. 

m tH£ tWEirtifiTrt Year of georgE iit. 249 

fercncc bctwcct^ the acceptor and the others, that the ac- i ^>j(\. 
ceptor is firft liable» and, to be entitled to have recourfe i_ _ _ , ^ 
againft him, it is not neceffaiy to fliew notice given to him Di no wall 
of non-payment by arty othet petfon. In the prefent cafe againft 
the queftion is, \Vhcther any thing has iri fa£l been done to Dunster. 
difcharge the defendants 'Fhe plaintiff being apprifed that 
Wheate was the pcrfon for whofe benefit the bill was 
drawn, did right in confideHng him as his debtor, and re- 
curring to him for payment. The defendant was fenfible 
of his kindnefs in not reforting to htm in the firft inftance^ 
and wrote to thank him for it» No ufe was made at the 
tvial, nor on the prefent argument) of what might have 
been a material circumftance^ viz» the defendant's having 
Written to the plaintiff, that he had been informed by a 
perfon who had been fent from him to the plaintifF to talk 
with him about the bill, that it had been delivered up to 
W'beaic. Probably the fa£k did not warrant him in this af- 
fertion« If the plaintifF, by any thing in his condu£l, had 
confirmed him in fuch a belief, it might have altered the 
cafe ; but nothing of that fort appears. I think there is 
to ground to fay he was difchafged. 

WiLLEs, Jufticef^l am of the fame opinion* I do not 
think filence can difchirge the acceptor. No cafe of a tacit 
<difchafge has been produced* In B/ack v. PeeUf the dif* 
charge was in exprefs words. In WalpoU v. Pulteney^ £he t ^S® 3 
mfe was put upon the entry in the book being an exprefs 
difcharge. Befides that cafe Is (lill depending. 

Ash HURST, Jußicey'^l am of the fame opinion. An 
acceptor makes himfelf a debtor, and his öafe is difiereht 
from that of the other parties to the bill. Nothing but an 
«xprefs difcharge will do. The defendant endeavours to 
prove a difcharge from letters, but they do not come up to 
it, and tlie conduct of the plaintifF amounts only to indul-* 
gence towards the acceptor. 

BuLLER, Jußicey — I am clearly of the fame opinion. 
Nothing but an exprefs agreement can difcharge an accep* ^"^ 
tor. And nothing of that fort appears in this cafe. The 
plaintifPs condu6l meant nothing more, but that he would 
try to recover from the drawer^ who was the original and 
true debtor, if he could. 

The rule made abfolute[f 71]- 


ri .Tt .• r^ D n njr the following indorfemcnt was made Ott 

*-»'-* >, * • the bill ; ^:z, " Received on account 

*^ ^''' 3 • of tliis bill 3 /. I s /* 4 ^. Balance re- 

AJjumpfiti by the payee of a bill of maining 26/. 4/. 8^. I promife to 

exchange, for 30/. againft the accep- pay to Mr. Thomas Ellis within three 

tor. The drawer and acceptor were months from the date of this.*' Signed 

brothers. When the bill became due, by James Qalindo^ who was the drawer, 

the plaintifF received of the drawer. The balance was never paid, and, at 

J/^ 15 /. 4</. and, at the fame time, the diilancc of three years, this adion 

R a was 




again il 


was brought againft 
the acceptor. The caufe 
wai tried before Lord 
Mansfield t who thought 
the acceptor was dif- 
charged, and non-ruitcd 
the plaintiff. 
On a rule to fhcw caufe, why there 
fhould not be a new trial. Lord Münf- 
field faid, he did not think the cafe at 
all interfered with the determination in 
Dingwall V. Dunfter, which had been 
cited as a ground for the application. 
However, the rule was eranted. 

The Solicitor GenerJ (Lee J, and 
Baldiuint for the plaintiff contended» 
that the indulgence for three months 
could no more be held to amount to a 
difcharge, than the payment of part; 
and that it was clear law, that payment 
of part by the drawer would not dif- 
charge the acceptor. An acceptor and 
drawer fland m different iituations. 
The indorfement was made to prevent 
an imputation of laches, becaate delay 
in coming aeainfl an acceptor, may 
difcharge a drawer or indorfer. But 
nothing under the limitation of fix years 
wiU difcharge the acceptor. 

Lord Mansfield, — The doubt is, whe- 
ther, inftead of a nonfuit, the queftion 
fliould not have been left to the jury, it 
beine a quellion of intention arifmg out 
of the circumilances. The bill was 
probably an accommodation bill, as the 
drawer and acceptor were brothers. 

W I L L E s, Juftice, — 1 1 wa s eftablilh- 
cd by Dingwall v. Dunfler, that laches 
wai not difcharge the acceptor. My 
doubt is, how far this indorfement ne^ 
cejfarily difch arges the acceptor, and I 
thbk that ^ueftion ought to have been 
left to the jury. 

BvLLBR, Jufiice, — There is no 
doubt as to the law. It is as has been 
ibited by the counfel for the plaintiff. 
I rather think the cafe (hould have 
gone to the jury. But I am not 
Üierefbre of opinion, that there fhould 
be a new trial. The indorfement could 
not have been meant as an additional 
f-curity, for the drawer was equally 
liable before. 1 fhould have left thie 
queftion to the jury, but with very 
ftrong obfervations ; and, as the de- 
mand is fo fmall, I do not think there 
fhould be a new trial. 

The rule difcharged. 

c 25» ] 

Monday, 15th 

If goods are 
infured on 
board a (hip 
from Londpn 
to Nant», 
with libcity 
to call at 
Cflend, and 
ihe is clear- 
ed only for 
Ofiind, hut 
fails directly 
for NoMtK, 
that being the 
known courfe 
of the t^ade 
in order to 
fave certain 
duties both 

Planche' and Anoihcr^ a^airiß Fletcher. 

nrHE PlaintifFs, Planche and Jacquery^ merchants in 
-■• Londoriy infured goods, ** on board the Swcdifi fhip 
** called the Maria Magdalena^ lofl or not loft, at and 
** from London and Ranifgnte to NaritZy with liberty to call 
" at Oftendy being a general fhip in the port o( London for 
** Nantz.^^ There was a declaration in the policy, that 
the in fu ranee was made on account of " certain perfons 
** carrying on trade under the name and firm of Vallee £5* 
** du Pleffis Monjteur Lujfeau It Jeunei Guillatitne Albert^ tt 
** Poitier de la Gueule^ The defendant underwrote the 
policy for 300/. at three guineas per cent. The fhip*$ 
clearances from the cuftom-houfe in London^ and her other 
papers, were all made out as for Oßend only, but the fhip 
and goods were intended to go direftly from London to 
NantZy without going to Oßend. Bills of lading, in the 


tn BngUnd and Franec, there is no fraud on the underwriter fo far as to vacate the po« 
licy— If an tnfunincc is ntade before the comn>enccment of hoftrlitics» but when every 
body expecls a war immediately, the infured is not bound to give the underwriter 
notice, though the (hip do not tail till after the War taker ^lace, and the underwriter 
is liable in cafe of caftun^-Tht courts i» this country do not tafee notice of foreign 
revenue laws. 


French language, dated the i8th of July 1778, were figned 1770. 
by the captain in Landon^ but purporting to be made at * 

Oßcndy and that the goods were (hipped there to be deli- Planche' 
vered at Naniz, The policy was fubfcribcd by the defend- againft 
ant on the 7th of Juiyy and the lading was taken in be*- fLjiTCHSft. 
tween the 24th of Julj and the 1 7th of Anguß. The pro- 
clamation for making reprifals on French fliips, isfc. bore 
date tlie 29th, and appeared in the Gazette on the 31ft of 
July. Two underwriters had figned the policy after the 
proclamation, at the fame premium of three guineas ; on^ 
on the 31ft of July^ and the other on the 7th oi Augufi, 
The Ihip failed on the 24th of Auguß^ and was taken by a 
King's cutter on her way to Nartiz. After her departure 
from Gravefendy the captaui threw overboard all ihe papers 
he had received from the cullom-houfe at London, They 
had been obliterated by the cudom-houfe officers at Gravefm 
tndy and were no longer of any ufe. The fhip was re» 
leafed by the Admiralty, but the goods were condemned* 
Tlje plaintiff had no connexion or (hare in the fliip. Such 
were the material fa£ls of this cafe, as they were dated 
this day, by Lord MiiNSFiELD in his report, upon a rule to 
fhew caufe why there fliould not be a new trial. The 
caufe had been tried at the laft Sittings at GuUdhally and a 
verdift found for the plaintiffs. The grounds of the ap^ 
plication for a new trial were two. i. That there was a 
fraud on the underwriters, the fliip having been cleared [ 2C2 1 
out for Oßendj and yet never having been defigned for that 
place. 2. That, as hoihlities were declared after the po- 
licy was figned, and before the fhip failed, the defendant 
ought to have had notice, that he might have exercifed his 
difcretion whether he would chufe for a peace premium to 
run the ri(k of capture. Beftdcs the faäs above-mentioned, 
his Lordfhip ftated, that the plaintiffs had produced evi- 
dence to fhew, that all fliips going with goods of Britifi 
manufa£lure to France clear out for Oßend without mean- 
ing to go thither, ai\4 that this is univerfally underflood by 
perfons concerned in that branch of commerce. The rea- 
fon fuggelted for clearing out for Oßend^ and afterwards 
making bills of lading as from that place, were, that the 
light-houfe duties are faved, which are payable when the 
voyage is known to be direöly down the Channel, and 
that the French duties are lefs upon goods from Oßend^ 
than from England. 

The Solicitor General, and Bcwer, for the plaintiffs — 
Dunning^ and Davenport, for the defendant. 

For the defendant, the fabrication of falfe and colour* 
able papers, and the fuppreffion of the true deflination of 
the fhip, were urged as circumflances of fraud, tending 
to miflead the underwriter, as to the voyage intended to be 
infured, and the nature of the rifk. But the feccnd ob- 
R 3 j^öic» 


1 770« jc^^o" was chiefly relied upon, and it was faid, that it 
, _ ' ^ was the duty of tnc infured to have given the underwriter 
Planche' information, that the (hip continued in the River after the 
tgiinft proclamation. It was alfo contended, that in time of war^ 
Fletcher, the exportation of enemy's property, even in neutral bot- 
toms, was illegal, and that an infurance upon fuch goods 
was void. 

In anfwer to this, it was faid, in the firft place, that 

there was no compulfion, by the terms of the infurance, 

» go to 0/iend. 
undcrftood by the underv^Titers, had been from England 

for the (hip to go to Oßend. If her Axed deftination as 

to Oßendy and from Oßettd to Nantz^ the policy would 
have been other wife worded ; and the cpurfe of the trade 
being notorious, the defendant could not be deceived ot 
mifled by her being cleared out for Oßend. As to the 
fecond objeöion, the rupture with France was impending 
and expeöed by all the world at the time when the policy 
was figned. The proclamation did not contain an interr 
di£lion of commerce between the two nations ; the packets 
and mails paflcd regularly between Dover and Calais long 
afterwards. There was nothing illegal in exporting or 
C 253 3 infuring French property in neutral bottoms after the pro- 
clamation, and the premium on fuch goods ip neutral 
ihips did not rife for a long time after the commencement 
of hoftilities. If the tranfaöion had not been ftriOly legal, 
there were cafes where the court had refufcd to grant a 
new trial on that ground when the objection was againft 
the juflice and conscience of the cafe (^7). 

Lord Mansfield, — This verdict is impeached upon two 
grounds, i. It is faid, there was a fraud on the under- 
writers in clearing out the fliip for Oßcnd when fhe was 
never intended to go thither. But 1 think there was no 
fraud on them, — perhaps not on any body. What had 
been praftifed in this cafe was proved to be the conftant 
courfe of the trade, and notorioufly fo to every body. 
The reafon for clearing for Oßendy «nd figning bills of 
lading as from thence, did not fully appear. But it was 
guefled at. The Fenmers Generaux have the management 
of the taxes in France. As we have laid a large duty on 
French goods, the French may have done the fame on 
ours, and it may be the intereft of the farmers to connive 
at the importation o{ Engliß commodities, and take Oßeni 
duties, rather than flop the trade, by exacting a tax which 
amounts to a prohibition. But, at any rate, this was no 
fraud in this country. One nation does not take notice of 

(«) They cited Deerly v. the Ducbefi cognized in Jllen v. Pefiall, C. B. M. 
ofMaxarine, B. R. H. 8 W, 3. z SalL 1 8 Geo. 3. 2 Blackfl. 1 177. Ö* Fide 
646. Smith V. Page, M. 8 ^. 3. B. alfo Edmonßn v. Macbell, B. R. 7", 
R. i6i^.6^^. Sparkes y. Spicer, B. R. ,317 GfQ. 3. 2 Term Rep. 4. 
H. 10 /r. 3. 3 SalJ^. 648-5, i>. re. 


the revenue laws of another [(Ö*]. With regard to the j 770, 
evafion of the light-houfe duties, the fhip was not liable t j — j 
to confifcation on that account. 2. The fecond objection Planchb^ 
}s, that the policy was made before, and the fhip failed agaioft 
after, the proclamation for reprifals. But every man in Fletcher. 
England and France ^ on the i 'jth of July , expe£ted the 
immediate commencement of a war. I will not fay it was 
actually commenced ; but the ambafladors of both coun- 
tries were recalled j the Pa/las and Licorne were taken ; 
the fleets at fea \ and, as it appeared afterwards, waiting 
for each other to fight. It does not appear that the goods 
were French property [i] ; an Englifitnan might be fending 
his goods to France in a neutral (hip. But it is indifferent 
whether they were Engli/h or French. The rifk infured 
extends to all captures [2], and as to other underwriters 
figned at the fame premium, after the proclamation, it [ 254 1 
appears that the war rifk was in view when the defendant 
figned. Shall he avail himfelf of an event which encreafes 
the rifk, but which he had in contemplation when he 
underwrote the policy f I am of opinion th^t there fhould 
not be a new trial. 

The rule difcharged [f 72]. 

[1^] S. P. Boucher v, Latu^on, B. declared being French, and from the 

R. H, 8 Geo. ;?. Ca/es Temp. Ld. Hard^v, condemnation at the Admiralty. 

85. 89, 90. Hitman v. John/on^ B, [2] The defcription of the rifk was 

R. 7'. 15 Geo. 3. Co^t, 34.1. 343. in the ufual printed form. 

[1] ft was aflumed by the counfcl [t 7*] ^tde Henkle v. the Royal Ex^ 

for the defendant, from the names of change Ajj'urance Company, Cane. 1740. 

theperfons \n whom the intereft was i f^ex, 317, 

Johnston and Another againß Sutton, Monday, 

•* ^ iSth Nov. 

THIS was an aflion on a policy of infurance on goods An alTurance 
on board the fhip Venusy loft or not loft, «at and o*'*^pyagc 
" from London to New York, warranted to depart with h^bitwl by^'hf 
^* convoy from the Channel for the voyage (a)." laws of this 

The caufe was tried before Lord Mansfield, at the country, is 
laft Sittings at Guildhall^ and a verdidt found for the void- 
plaintiffs. The defendant obtained a rule to fhew caufe 
why there fhould not be a new trial, which came on to be 
argued immediately after the foregoing cafe of Planche v. 
Fletcher. The fafts, upon his Lordfhip's report, appeared 
to be thefe : The fhip was cleared for Halifax and Nemn 
York^ She had provifions on board, which flie had a 
licence to carry to New-Tcrkf under a provifo in the pro- 
hibitory aft of 16 Geo. 3. c. 5. But one half of the cargo, 
including the goods which were the fubjedl of this policy, 


(^) nde Lilly v. Ewer, ßpra, H. 19 Geo. 3. f» 7a. 



I77Q- ^^^ "°^ liccnfcd^ and was not calculated for the Haltfiai 

l_ - - ^ market, but for New-Tork. There had been a proclama« 

Johnston tiori by Sir William Hoive to allow the entry of unlicenfed 

ai^aiiift goods at Nezu-Torky and though there were bonds ufually 

Sutton, given at the cuftom-houfe here, by which the captain 

engaged to carry the goods to Halifax^ thofe bonds were 

afterwards cancelled, on producing a certificate from an 

officer appointed for that purpofe at Ne^v-Torkf declaring, 

that they were landed there. The commander in chief 

had no authority under the a£^ of parliament to üTue fuch 

proclamation, or to permit the exportation of unlicenfed 

goods. The Venus was taken in her pafiage to W«c/ 

Tork [i], by an American privateer. 

[255 ] Dunning^ and Peckhamy for the plaintiffs.— The Solicitor 

General^ and Lee, for the defendant. 

On the part of the plaintiffs, it was contended, that a 
verdift agreeable to the juftice and confcience of the cafe,^ 
although the tranfaöion might not be ftriftly legal, would 
not be fet afide by the court. The cafes cited on this 
point in Planche v. Fletcher (2), were infilled upon, and a 
modern cafe of Burton v. Thovip/on {a)^ was alfo mentioned, 
in fupport of the fame doörine. 

On the other fide, it was faid, that the plaintiff's counfel 
were fo well convinced that the objeftion was fatal, that 
they called for the cryer to nonfuit their clients, but the 
jury delivered their verdi<fl before he could be found. 
That there was no imputation on the defendant in making 
this defence, becaufc, on the face of the policy, it was 
lawful; for licenfed goods might be legally carried to 
Ne^ Tork. He was to prefume that the goods infured 
were licenfed. The infurer has no opportunity of feeing 
the clearances. 

Lord Mansfield, — The whole of the plaintiff* cafe 
goes on an eftabliljied praflice, direftly againft an aft of 
parliament. If the defendant did not know that the goods 
* were unlicenfed, the objeftion is fair as between the par- 

ties. If he did, he would not deferve to be favoured. 
But, however that may be, it was illegal to fend the goods 
to New Tork J and, in pari deUßo, potior eß conditio defen^ 
dentis. It is impoffible to bring this within the cafes 


[1] The ftatute (§ 1.) prohibits all Majefty*s troops, provided the mailer 

commerce with the province of Ne^-w ihall produce a licence» fpecifying the 

Yorky (amongft others») and confifcates voyage» ^c, and the quantity and 

all (hips and their cargoes which (hall fpecies of provi(ions; but by the fame 

be found trading» or going to» or provifo it is declared» that goods not 

coming from traduig with them. Then licenfed» .found on board fuch (hips, 

there is a provifo (§ 2.) excepting (hips (hall be forfeited, 
laden wjth provi(ions for the ufc of his («) Supra^ /• * J3- ^^^* (^)* 
Majcfty's fleets or garrifons, or the (a) B. R. M. ^2 Ceo, 2. 2 Burr. 

iohaltttants of any town poire(red by his 664. 



which have been cited, becaufe here there was a dircfl: 1770, 
contravention of the law of the land. — As to the nonfuit, • - » 

if it had been recorded, I ihould have fet it afide, that Johnstok 
the plaintifiä might not imagine themfelves injured by (he againft 
sidmiffion of their counfel. Suttox;, 

The rule made abfolute [OC^} 
[l:^] f^idc DehnMfa v. Motteux, B. R. M, 25 Gfo, 3. 

. C 256 ] 

Lee azäinß White and Others. Tuefday, 

^ •^ 16th Noy. 

THIS caufe, which was an aftion of trefpafs for taking The inhabi-' 
the plaintiff's goods, was tried before Heath, Ser- »an*«of<mc 
jtanty at the laft Affizes for Scmerfefßlre. The defendants ^^^ borough 
juilified under the ftatute of i £5^ 2 Pkiiip and Mary^ or town cor- 
eap. 7. (a). A verdidt was found for the plaintiff, but porate, are not 
fubjeii to the opinion of the court on a cafe which ftated ;— pro^ibUed by 
That Frome is an ancient market-town, but not a town f/ici, from 
corporate, nor having any guild, fraternity, or liberty; felling woollen 
that the plaintiff, at the time of feizing the goods in the cloth, lac. in 
declaration mentioned, did not inhabit in Frome^ but was ^^^* "ci!^*^ 
an inhabitant of the city of Hereford^ carrying on the trade b^^Jiji i^^i 
of a linen-draper there \ and that, in the room in the de- not in open 
claration mentioned, in the town of Frome ^ and not in any fair« 
open fair, he proffered to fell, b/ retail, the goods in the 
declaration mentioned, being part linen-cloth, part haber- 
dafliery, and the refidue mercery wares, not being of his * 

own making [i] ; that two of the defendants, being con- 
ftables of Frome^ and the other defendants in their aid, 
entered the room, and feized and carried away the goods. 

Battj for the plaintiff. — Davenport^ for the defendants. 

Batt having mentioned the cafe of Davis v. Leving, 
reported in Levinz (i), (where, upon a demurrer, it was 
adjudged, that the inhabitants of one market-town might 
feU their goods bv retail in another, and were not meant 
to be prohibited from fo doing by the ftatute of Pbiitp 8c 
Marjj) Davenport admitted, that it was decifive ; and the 
tourt, without argument, declared themfelves to be of 
that opinion. 

The Poftea to be delivered to the plaintiff. 

(«) § I» 1. cloth of the vendor's own making, 

[i] By i 5- of the ftatute, there is [i) £. R, 25 Car. t. 2 Lrv. 89. 
an exception as to the lineA or woollen 



Janson and Another, Affignecs of Burton, 
TueWty, a Bankrupt, againß Willson. 

Thedepori- ^T^HE defendant having obtained a judgment againft 
tionsoMheaa 1 Jßurtftn^ levied on his effects to the amount of his 
tKr^ t?^ O" fl 25th of Januann-^9 On the «5^ of 
according to February foHowing, a commilhon or .bankruptcj lilued 
5 c». 1. c. 30. againft Burtotiy and he was found a bankrupt, on the 
Wi.arecvi- evidence of Anne Wdls^ then his fcrvant, who fworc to 
»ai^'at"l^, feveral afts of bankruptcy on the 7th and 8th of January. 
to prove the ' Before the (heriff had paid the money over to Wulfon^ the 
fntijk tim when aflignecs gave him notice not to part with it, ftating to 
the »a of bank- him, that an aft of bankruptcy had been committed betorp 
committed* if ^^ execution of the writ oi fieri facia^. The (heriff ap* 
Ipecified thcj«- pHed for, and obtained, leave to pay th^ money into 
io» court, and the alDignees having moved that it might be 

paid over to them, the court dire£ted a feigned iflue to 
try, " whether Burton became a bankrupt before the 25th 
«< day of January 1779." At the trial, the plaintifi^ . 
proved, that Anne Wells was dead, and produced an office- 
copy of the record of her depofition, made according to 
the directions of the ftatute of 5 Geo. 2. r. 30. $ 41. in 
order to fhew, that Burton had committed an aA of 
bankruptcy before the 25 th of January. It was objeäed^ 
at the trial, that it was not the meaning of the ftatute» 
that the depofitions, when entered of record, {hould be; 
evidence of the precife tinoe of the party's becoming a 
bankrupt, but merely that he was (o before the commiffion 
ifTued, Lor^ Mansfield, before whom the caufe was^ 
tried at the lad Sittings at Guildhally admitted the evi- 
dence ^ and a verdidt was found for the plaintiffs-, but 
his Lordfliip faved tlie point ; and the defendant, in the 
beginning of this term, obtained a rule to (hew caufe why 
the verdi£l fliould not be fet afide. 

The cafe came on to be argued, this day, by the SWif- 
cltor Generaly and Davenport^ for the plaintiffs*— 2>i//7ffm;^ 
and Erßiney for the defendant. 

In fupport of the rule, it was argued, that the purpofe 
of the provifion for making a record of the depofitions is 
declared, by the preamble, to be, to proteä die titles of 
purchafers under commiflions of bankrupt, which purpofe 
is attained, if depofitions fo recorded are only admitted as 
evidence of every thing neceflary to fupport the conrniiiDon^ 
C ^5^ 1 and, for that end, proof that there was an a£l of bank- 
ruptcy before the commiflion iffued, is fufEcient. If the 
more extenfive conftruAion were received, the effeö, in 
numberlefs iiiftances, would be to overturn| inftead of 



cftablifhing titles under commiffions. A man who has 1770. 
been in poffeflion almoft twenty years might lofe his \ j 

eftate, in an cjeftment, on this fort of evidence. When Jan son 
a commiflion is opened, the commiflioners never inquire, again ft 
or crofs-examine the witnefs, as to the precife time of the Willst n, 
bankruptcy, and therefore no precifion on that point is 
to be looked for in the depofitions ; and Lord Hardwicke 
publicly approved of that method of proceeding, and faid, 
that the commiflioners ought not to find the exaft time, 
not thinking that within their province. When a ftatute 
encroaches on the general rules of law, by making that 
evidence which otherwife is not, it ought to be conftrued 
ftriaiy, and not carried beyond the purpofe for which the 
innovation was introduced. 

On the other fide, it Was faid, that the ^(k of parlk- 
ment was compulfory as to reading the depofitions in 
evidence. The degree of credit a jury might chufe to 
give to them was another queftion. Thev might be con- 
tradided or mifbelieved. The argument from the manner 
in which the preamble of the clauJc of the ftatute on which 
the point arofe was worded, could have no weight. It 
fpecifies only the inconvenience to purchafors of mejfuagesy 
lands J tenetfteuts^ or hereditaments ; would it be contended, 
that purchafors of perfonal property could not avail them- 
felves of the depofitions, when recorded to prove their 
title ? If thofe depofitions are to be read in evidence, 
they muft be taken all together, and cannot be garbled^ 
and part confidered as admifCble, part not« Befides, the 
enaäirig part is general, and fays, that copies of the record 
of depofitions made up in the manner dire£led by the a£t, 
^* fhall and may be given in evidence to prove fuch com- 
*^ miflTions, and the bankruptcy of fuch pcrfon againft 
** whom fuch commiflion hath been or fliaJl be awarded, 
^* or other matters or thirrgs [l]." 

Lord Mansfield, — At the trial, I had a recolleöion [ 259 1 
that this queftion had come before the court upon fome 
former occafion^ and that Sir Fletcher Norton had argued 
it, but I did not remember the event. The objeftion to 
the evidence feemed to me to have weight in this caiife, 
where the only faä in ifl'ue is the time when the bank- 

{ I ] There is a remarkable inac- fcquent part of the daufe, oor of the 

curacy in this fefUon of 5 Geo, 2. c, 30. adl, any provifion for attefting or fign- 

which was not mentioned on the pre- ing the entries fo made. It is cmlf 

fent occafion. After prefcribing the cnadled that the Chancellor (hall ap- 

manner of entering the commiilion» point a perfon who (hall by himfelfor 

depofitton, procee(£ngs, and certifi- his deputy, by a writing under his of 

cate of record, it fays, that true copies, their bands, enter of record fuch com- 

*' ligaed and attcfted as hereinafter' 'millions, ^r.— ^. How the copy of 

mentioned t** fhall and may be given in the depo(ition ia this cafe was atteHed 

evidence, but there is not in die fttb« and figned ? 


1 77Q« ruptcy took place. I took the fafeft way. I admitted the 

I; y^ f evidence, and left the jury to judge of the weight of it, 

j: Janson but faved the point for the opinion of the court. Upon 

' agaioft confideration, it feems clearly determined by the a£t of 

WiLLsoN. parliament itfelf. The witnefs cannot tell his (lory before 

the commiflioners, without (aying ivben the z€t of bank« 

ruptcy was committed« He mud mention that, naturally, 

' and of courfe, and therefore is the more likely to fpcak 

the truth. In many cafes its being an a£b of bankruptcy 
t depends on the time. The Icgiuature considered ^ the 

commiflioners as indifferent pcrfons, examining the wit* 
nefles with impartiality, and taking care of the intereils of 
1 all parties. It is very common for the enaäing part of a 

. ftatute to extend beyond the evils mentioned in the pre- 

) amble, and the Engli/b language does not afford more 

\ general words than thofe ufed in the enaäing part of this 

' ftatute. It turns out, that this very point was agitated in 

I the cafe of Alderfon v. Temple (a), and, after confideration, 

: the court was unanimous, that the aä is conclufive, and 

the depofitions admiflible evidence to all purpofes. 

WiLLEs, and Ashhurst, Jußices^ of the fame opinion. 
• BuLLER, Jußice^ — I have a note of Alderfin v. TempUy 

;: ^ which mentions this point, and Mr. Davenport has lent me 

; one of his, which is very accurate {h\ The tourt, at firft, 

' were not aware of the words of the ad, but afterwards, 

though there was no exprefs decifion, the audience were 
imprefled with the idea that they were all clearly of the 
opinion juft ftated by his Lordfhip. The preamble of the 
aö does not merely recite the inconvenience anfing to 
purchafors under a commiflion, but alfo thofe to which 
the creditors of a bankrupt were expofed. What Lord 
Hardwicke faid has been mifunderflood. He was fpeak- 
. ing of the adjudication by the commiflioners, not of the 

depofitions, which muft mention the time, fo as to fix it 
^ after the date of the petitioning creditor's debt, and before 

: [ 260 ] the ifluing of the commilfion [2]. Some aös of bank- 

' ruptcy depend entirely on the time. Thus^ keeping houfe 

\ on a Sunday canpot make a man a bankrupt. It is unne- 

! ccflary, in this cafe, to determine, whether the depofitions 

j might have been contradicted. 

I The rule difcharged. 

*y ^ {a) T. 8 Geo. 3. 4 Burr. 2235. [2] Tht Solicitor General (aid. Lord 

Since reported, i Blackß, 660. But Hardiuicke^s reafon for advifing com- 

this point is not mentioned by either of miilioners to find the bankruptcy ge* 

thofe reporters. nerally was« that they might allow all 

(h) BulUr, Juftice, read Davenport^ who were creditors prior to the date of 

Aote. the commi£ion to prove their debts. 



Macdowall ajrainjl Fräser. Tucfday, 

^HIS was an aöion upon a policy of infurancc on the In a reprelcn. 
-*- fhip the <* Mary and Hannah ^ from New Tork to Nation that a 
<« Philadelphia:' At the time when the infurance was ^jf ^nfur" 
made, which was in London y on the 30th of January ^ the jay and had 
broker reprefented the fituation of the (hip to the under- performed two 
writer as follows : "-The Mary and Hannah^ a tight veffel, ^^»«1« of her 
«< failed with feveral armed (hips, and was feen fafe in the ^^^^^ '^'^ 
" Delaware on the nth of December^ by a fhip which ihehadgotat 
** arrived at New TorhJ* In fa£l, the veflel was loft o/i far as was re- 
the gth rf December y by running againft a chevaux de frife^ prefentcd, but 
placed acrofs the river. The caufe came on to be tried T^* loft fwo 
before Lord Mansfield, at the laft Sittings at Guildhall, the day moi- 
The defence was founded on the mifreprefentation as to tioned, the 
the time when the (hip was feen ; and the reprefentation ro«ftake is nuu 
and the day of the lofs being proved, the jury found for ^*"*^» *"^ 
the defendant. On Morulay^ the 8th of November^ Dun^ wAxcj void. 
ning obtained a rule to (hew caufe, why there (hould not 
be a new trial, which came on to be argued this day. 

The Solicitor General^ and. Dunning^ for the plaintiff.— 
Lu and Davenporty for the defendant. 

On the part of the plaintiff, the difference between a 
warranty and a reprefentation was much enlarged upon. 
It was admitted, that the reprefentation in this cafe was 
falfe in point of fa£b, though the infured, at the time, 
believed it to be true. It was alfo admitted, that a repre- 
fentation, if falfe, in a material ipoxni^ annuls the contrad. 
But it was contended, that the particular day when the 
(hip had been feen in the Delaware was not material. 
That the meaning of the reprefentation was to inform the 
underwriter, that the (hip had got fafe through two thirds 
of her voyage from Neno Torhj and beyond the reach of 
capture. What was ftated as to that material part was r 261 T 
perfeäly true, and that was all that was neceffary, as was 
decided in the cafes on the infurance of the Julius Cafar {a). 
If the reprefentation had been, that (he had been feen on 
the 8th or 9th in the Delaware^ it would have made no 
difference in the premium. There might have been cir- 
cumftances which would have rendered the day material, 
as a bad ftorm on the 9th or loth ; but there was nothing 
of that fort in this cafe- An intentional mifreprefentatiqn 
was not imputed to the infured. The manner in which 
the miftakc arofe was this [i]: The captain who had met 


(a) Paw/oH v. Ewer, Wr. fufra, written from New Tork, but which had 
/. 1 1 . Note [3]. ^ no; been produced at the trial» 

[iJ-This was ftated from letters 



I nn(S. ^^ fl^ip fai<*» *^at he had fecn hc^ on the fifth day after 

1^ - - ,^ her departure from New Tork. It feems a (hip is faid to 

Macdow. fail from Nnu Tork indifferently, either whca (he fails 

ALL from the cjtiay at New York, or from Sandy Haai. When 

againfl the captain mentioned her departure from New Torky he 

Frasih. was under flood to mean firohi Sandy Hook^ and it was 

known that (he had failed from thence on the 6th ; but it 

turned out that he meant to fpeak of her departure from 

the quayy which was fome days before. 

For the defendant, it was urged, that the materiality of 
the faft mifreprefented was before the jury, and that they 
had exercifed their judgment upon it, and determined by 
their verdi£b, that it was material. 

Lord Mansfield, — ^The diftindion between a warranty 
and a reprefcntation is perfedlly well fettled. A reprefent- 
ation muft be fair and true. It fhould be trtie as to all 
that the infured knows ; and, if he reprefent fadls to the 
underwriter, without knowing the truth, he takes the riik 
upon himfelf [(r>]. But the difference between the faö 
as it turns out, and as reprefented, muft be materiaL 
The cafe of the Julius Cafar was very different from this4 
The (hip, there, was only fitting out When the infurance 
was made. No guns nor men were put on board. It 
was only faid what was meant to be done, and what was 
done, though different, was as advantageous, or more fo^ 
than what had been reprefented. There was no evidence 
of adlual fraud in the prefent cafe, and no queftion of that 
fort feemed to be made. But there was a pofitive aver-* 
ment, that the fhip w^s feen in the Delaware^ on the nth 
of December^ The underwriter was deceived as to that 
faä, and entered into the contraft under that deception. 
t 202 2 There was no evidence at the trial when (he was feen in 
the Delaware J or in what condition ; but^ fuppofe the 
fad bad been explained in the manner now fuggefted, 
why did the infured take upon him to compute die day 
of the month on which (he had been feen ? Why did he 
not mention exa<EUy what his information was, and leave 
the underwriter to make the computation ? In infuranccs 
on fhips at a great diftance, their being fafe up to a certain 
day, is always confidercd as a very important circumftance« 
I am of opinion, that the reprcJentation concerning the 
day was material. 

WiLLfes, Jußice^ — ^This is certainly only a reprefcnta- 
tion ; but, in an infurance on fo lliort a voyage, it might 
have made a material difference whether the (hip Was 
known to be fafe two days fooner or later. It ought to 
have been (hewn, on the part of the plaintiff, that it wad 


fr>] So, if the agent of the under- Fttzherhert v. Mather, B. R. M. z6 G. 
wntcfdoes fo, his principal is liable. 3. iTerm Ref. la. 


not material, but there was no evidence that the (hip was 
met on the 9th, or any other day« The materiality was 
proper for the confideration of the jury. 

AsHHURST, 7i^/r^,— The diftinftion which the court 
has made in the cafes on the Julius Cstfar^ and foine 
others, between a reprefentation and a warranty, is ex- 
tremely juft. There is no imputation of fraud in this 
cafe; but the infured ihould have been more cautious. 
In the former cafes the reprefentation was of what was 
intended ; here, it was of a fad, dated as having happened 
within the knowledge of the infured. He fhould have made 
the reprefentation in the fame words in which the intelli- 
gence is faid to have been communicated to him. 

BuLLER, y/£/?/V^,— We cannot fay the difference of the 
day was not material. The fafety of the (hip is the moft 
material fa£l of any, in cafes of infurance. The plainti(F 
admits, that the place where (he was met in fafety was 
material. Why was not the time equally fo ? There was 
no intentional deceit, and it is perhaps unfortunate that 
the infured made the miftake; but I think the verdi& 

The rule difcharged [(t:>]. 

[1:^] Vide Stewart v. Dunlop, Dom. Proc, 1 785. 





Pritchard againß Pugh. 

ON Monday^ the 8th of November^ Mingay had moved, 
as of courfe, to change the venue from Middle/ex to 
Montgomerypjirey on the ufual affidavit, that the caufe of 
aäion arofe there. The court however expreffed con- 
(iderabie doubts, and * only granted a rule to (liew caufe, 
which was argued on Tuffday the 17th, by Davenport for 
the plaintiff, and Mingay for the defendant. Mtngay 
relied on the cafe of Waddington v. Thelwell^ reported in 
Burrow (a). He read a manufcript note of that cafe lent 
him by Kettyony who was counfcl in it. There a (imilar 
rule was granted, and made abfolute, but there was no 
oppofition. The other cafes cited in Waddington v. Thel- 
we/I -wcTQ alfo mentioned, and Duller, Jußice^ read fe- 
veral of them from manufcript notes in his poffeflion. He 
faid the doubt was to whom the writ of enquiry muft be 
direöed in cafe of judgment by default. The court de- 
(ired the cafe to be mentioned again this day, but Daven* 
port now produced an undertaking of the plaintiff to give 

{a) T, 3 Geo. 3. 4 Burr. 24^. 

a 7th Nov. 

It is not fettled 
whether the 
court can 
change the 
venue fram an 
Engli/b to a^ 
fVefi countf» 

•[ 263 3 




material evidence in Middießx, which rendered it unne^ 
ceffary for the court to determine the qucftion [i}. 

The rule difcharged« 

[i] In Af. l^ Gfo. 3* a fimilar mo- ]ate> but no caufe was (hewn againft tr^ 

don came on m C. B. in the cafe of fo that the point is ftill undecided 

Truman v. Gnuyn^ reported in 2 Blackß. [ t 73] • 
962. The rule there was made abib- 

[t 73] ^* ** ^^' 3' *" * ^^'^^^ ®^ 
y^jvrj V. Thomas^ a rule was obtained 
by J^wrr, to flicw caufe, why the venue 
flioald not be changed into Carmarthen- 
ßir€\ H. 2^ Geo. 3. in Jona v. Rees, 
Lt Blanc obtained a £milar rule« to 
change the venue into Glamorgan/bire ; 
and M. 25 G«. J. in IFilkins v. IfiU 
JSm/, a uke rme was obtained by 

Douglas^ for changing the yeirae to^ 
Breconßfire ; but the firft and laft never 
came on again, and that in J^na y* 
Rees was made abfolate without oppo- 
fidon. 1^ A fimilar rule was arter« 
wards obtained on the motion o^CaUi-^ 
cott in Hiles v. hUreditb, B. R. T*, 
25 Geo.' I. 

Wedncfday, AlLWAY ajTaiflJl BURROWS, ExCCUtOf* 

17th Nov. <5 ^ ' 

An executor 'T^HIS was an aflion brought upon an apothecary's 
iSlhrcourt'of ^^"' ^^^"S ^y ^^^ defendant's teftator, in livhich the 

confcience for pl^'ntifF had a verdid for iL 5/. Pechham^ feme daya 
the county of ago, obtained a rule to fhew caufe, why the defendant 
ididdiefix. (hould not have leave to fuggcft on the roll that he lived in 

Middle/ex^ and that the debt was under 40 (hilUtlgs. 

Davenport now Ihewed caufe, and infifted, that it 
could not be meant that executors (hould be fued in the 
county court of confcience. That the Icgiflaturc could 
not intend to give to fuch a court an authority to enquire 
into the condu£b of executors, and take an account o( 
afiets. That the jurifdidlion is only given againft perfons 
who owe any debt to the plaintiff, and an executor is not 
in law confidered as owing his teftator's debts« 
C 264 3 Peckham, on the other fide, obferved, that, ill the efta* 

blifhment of feveral courts of this fort, there is an exprefs 
exception relative to teftamentary queftions (0), and, as 
there is none in the aft of 23 Geo. 2. c. 33. [il it was a 
fair inference, that no fuch exception was meant. That 
the expreflion of << owing** is not to be found in that ad, 


(a) nde 3 Jac. !• f. 15. § 6. (cited 
/ttpra, p. 245) and 23 Geo, 2. c. 30. 

i 29. 

[i] The only exception in this fta- 
tute, when the defendant lives in Mid* 
die/ex and // liahU to htfummoned to the 
court» is in cafes where the *' judge 
'* (hall certify in open court on the back 
«« of the record, that i. the freehold, 

'' or 2. the tide to the plaintiff's land« 
" or 3. an ad of bankruptcy, princi-» 
" pally came in queftion," § 19.— 
None are liable to be fnmmoned but 
fuch as were fo« to the old common-law 
connty court, and the new court can 
hold plea of no aftion^ caufe» or fiiit, 
except fuch as were within the old ju^ 
rifdicUon, § 4« 

Ui ttlE TWfiNTlfetH YEAR OF GEORGE lit* ^6^ 

and is in the others (i). At any rate, the court would j 1 770. 
(as they had done in a very late cafe of the fame fort (r),) ^ '_ -^' ^ 
allow the fuggeftion of the faft, leaving the Confequence in AilwaV 
point of law for fubfequent confideration; againft 

Lord Mansfield, — ^Thc court will not permit the fug-^ Büräcwi. 
geftioii of a matter on the roll, unlefs it appear to be rcle-* 
vant, arid it could not be meant to give this court of con- 
fcience a jurifdiäion over executors. If there is no cxprefs 
exception, there is one implied fr'om the nature and reafoii 
s^ of the thing. 

The rule difcharged {d}. 

{h) As in i Jac^ I. r. 15. and (</) Vide fupm WooUey v. Cloutman, 
23 Gto. z. c, 30. /. 244. Wafs v. Wyburd, /. 246. and 

(f) Wafe v. IVjhurd, /upra, /. 246. Wilt/hire v. Lloyd, infra, 381, 

GooDRiGHT, Leflee of Docking, and two wedncfday. 
Others againß Dunham and Another. «7thNüir. 

THIS was an ejeftment, tried before SKYNNfeR, Chief Ifaneftateii 
Barotiy at the laft Affizes for Norfolk^ when a cafe was <*cvi*'ed,— to 
tefervcd for the opinion of the court, which, (as far as was \^^ for TT * 
material,) was as follows : Thomas Laming^ being entitled and tft«- hi$ 
to a remainder in fee, in the premifes in queftioil, ex- death to the 
peöant on the death of Ann Buher^ tenant for life, by a ^<^"*« children 
codicil to his WUI, devifed them, in the following words : ^II!^ • " ?^' ? * 
— " I give my mefluage, &c. (defcnbing the premiles,) Ton die without 
" to my fin Jeffrey Laming ^^ his life, atid^ after his death, ifluethentothe 
" unto all and every his children equally^ and to their heirs, J^'*^for'$ two 
<« and, in cafe he dies without iffue, I give the faid preniifes ^hf^^i^f/Te) 
" unto my faid two daughters and their heirs, equally to * be -and then ncirs 
" divided between themJ' — ^The teftator died in the lifetime — theeftatcto 
of Ann Bulver, having left the faid Jeffrey his only fon and ^^^ children of 
heir at law, who, after the death of Ann Bulver, entered Jl^t^"^*"*^»!!!** 
upon the premifes, and fuffered a recovery thereof, to the lers arc both 
ufe of himfelf in fee, and afterwards conveyed them to the tnungcnt rc- 
defendants- He died in 1778, without having ever had niainder« /«/*#, 
^y iffue. Two of the leflbrs of the plaintiff were the two b^'^th^ ^t^cM« ^ 
oaughters of Thomas Laming, mentioned in the codicil to fo^ jjfe bart 
his will, and the third was a perfon to whom they had, them both, 
in 1776, conveyed their intereft expeöant on the death ♦[ idt J 
of their brother. 

Tlie cafe was argued, on Tuefday, the l(?th of November^ 
by Le Blanc, for the plaintiff, and Lee, for the defendants. 

The court dcfired Lee to begin. 

He argued, that, wherever a freehold cftate is firft 
limited, fufficient to fupport the fubfequent limitations as 
remainders, they Ihali never be confidcred as executory 

Vol. L ' S devifes. 


devifes {a) [oö*]. Here, the cftatc eivcn to Jd^ey wat 
for life, and the Hrnjution to hit children and their beirt 
GoSdright was clearly a contingent remainder in fee« The remainder 
again ft over mud, therefore, of necelEtj, be contingent alfo, be-^ 
Dunham, caufe there cannot be a veiled remainder after a limitation 
in fee {h\ Luddington y. Kime {c)y is fo HxeOdj in point 
as not to be diftinguifhable froni the prefent cafe. The 
devife there was to A. for life without impeachment of 
wade ; and in cafe he (hould have anj iflue-male, thex^ 
to fuch iflue-male, and his heirsy^ ever; and if he (bouid 
die without UTue-male, then to B* and his heirs for ever. 
A. entered, fufFered a common recovery, and diedwithoutf 
iflue ; and it was held, that the two remakiders over after 
A.\ life-eftate were concurrent [f 74}, contingent re- 
-mainders in fee, and both barred by the recovery, Thoueh 
it feems very clear that Jeffrey took only an eftate for life^ 
yet it will anfwer the purpofe of the defendants equally 
well to confider him as having taken an e((ate-tail» becau£e> 
in that cafe, there can be no doubt but the recovery barred 
-all fubfequent remainders. Doe^ Lejfee of Browne ^ v. Hdnu 
tsf Lottgmire (J), is another cafe almoft exaAly in point« 
An eftate was there left to the tcftator's fon for life, with 
impeachment of wade, and, after his deceafe, unto the. 
heirs-male or female lawfully to be begotten of the body. 
[ 166 ] of his f^i^ fon, they paying out of the fame, a funa o^ 
400/. 55V. which if they did not pay within a limited, 
time, then the edate to go to his daughter and her heirs» 
till the faid legacies du>uld be raifed out of the rents and 
meßte profits, and, when that fliould be done, to returt^ 
to the heir-male or female lawfully begotten by his faid 
fon, and to his or her heirs for ever; but, if his faidfim 
Jbotäd die leaving no ijfue, then to his faid daughter» and his» 
heirs for ever. The fon entered, and fudered a recovery, 
and died, without ever having had any iflue. The daugh- 
ter, upon his death, brought an ejeftment, but the court 
of Cowffjon Pleas held clearly, that her intered, qtsJcunque 
vi/jy was barred, being a contingent remainder in fee 
limited after a prior contingent remainder in fee. 

Le Blatte faid, he took it to be admitted, that the eftate 
to Jeffrey was only an edate for life, and contended, that 
the limitation to his children was only in tail, and there- 
fore the remainder oyer, being to perfons in ejjej was 
veded, and, of courfe, not dedroyed by a recovery fuf- 

{a) Purlfoy v. Rogers. 2 Sound. '^^%. (f> C. B. E. ^JV. 3. 1 Ld. Raym^ 

[»^] H'/althy. Leßi of Maniey, v. 203. I SaU. 224. 3 Ltu. 43s. 

Bo/vil/c, B. R, £, 9 Geo. 2. Ca, f'emf. [f 74] f^ide infra, f, 505, Nott, 

U. Haniiv, 258, 259. (d) C, B. T. II ^ M. 12 Ge§^^. 

(S) Fide 10 Co. 2^. 1^^/^.237.241; Since reportedly, a* 


fercd by a mere tenant for life. At kaft the quefttol^ wad. I J JO* 
ftill open ; for, in the two cafe» relied en, on the other fide, i^ - ^ 
the ^i^ords by which the intermediate eftate waa limited, GooDitioM'r 
were different from thofe in the prefent will. In Ludding-- againil 
ton V. Kimij the expreffion *^ for ever** is fuper-added^ Dum »am« 
which is a ftrong indication of the intent to give a fee^ 
'(imple. In D9e v. Holme^ there is the fame expreiTicn) and 
the eftate limited is charged with the payment of a kirgd 
fum of money, which is a circumftance that has always 
weighed confiderablyin que ftions whether the eftate intended 
Was for life, iu tail, or in fee. In a will, it is not of 
courfe that the word " heiri* (hall carry an eftate in fee^ 
fimple. If fubfequent expreflions manifeft an inteiitiort 
only to give an eftate-tail, the court will lay hold of thcrta 
[(Ö*]. Now, here, the daughters were collateral heirs to their 
brother's children ; if, therefore, the teftator liad meant 
that the eftate to the brother's children fhould be a fee- 
£mple, the limitation over would be nugatory, and with- . 
out any meatiing, becaufe the heirs of the children could 
never be exhaufted while the daughters or their heirs con- • 
tinued to exift. There are many cafes of this fort, where 
a limitation to heirs has been reftrained to heirs of the hcdy^ 
when the limitation over has been to a collateral heir of the 
perfon named in the prior limitation. Thus, in Wehh v« 
Hearing (<?), the limitation was to the teftator's fon, andj 
if the teßator^s three daughters fhould overlive their brother^ 
and his heirs, then to them ; and the daughters being col- [ 26^ ^ 
lateral heirs to the fon, the words " his heirs*' were 
reftrained to heirs of the body ( i ).- 

Lord Mansfield, — In that cafe, the court put the only 
pofliUe conftruäion on the words. The daughters could 
not overlive the fon's collateral heirs, and therefore it waa 
neceflary there to reftrain the fenfe. But here the words 
are very different ; the limitation over is not " if the 
*' daughters furvive the ßn*s children and their heirs^ but 
*« if the fon die vfithout tffueP 

Lee, in reply, admitted the general doftrine, that fub- 
fequent words, indicating an intent to give an eftate-tail, 


[r^] And this in the cafe of a grant, (a) B, R. H. 14 fac, i. C/0* 

as well as of a will. '* Come mettons Jac» 4L5. 

" que jeo dornte terre 3l vous et a vos [1] Fide alfo Tyfe v. PPlllis, Ca, 

" heirs a toujours en le primes del* /ait, temp, Talb, l. So^tingham v. Jennings, 

*' et puis jeo di oultre et ü coiiüngTit que l P. Will. 23. Parker v. Tkacker, 

•' vous deviez fans heir de votre corps, 3 Le'u* 70. Attorn^ General v. Gill, 

** il reroaine a un autre, en cefi cas le 2 P, Will. 369. Tilburgh v. Barbcck^ 

•• /eyentendraperleCiconiingsiUque'votre i Fez. 8p [f 75]. 
" efiat eft eftat tail:* igHen. 6. 74. B. 

[t 75] Morgan y. Griffiths^ B. R. ff. 15 Geo. 3. Cowp, 234. 


1 7 70« ^* rcftrain the fcnfe of the word " hetrs^ in a will, bur 

y 'J_ ^ inliftcd, that here the intention was clear the other way» 

GooDRiGHT He faid, if the words had been, " and if tbofe cbildreif 

again ft (r. e» of the fon) " ßculd die wthout iffue^ the cafe would 

DvNHAM. have been within the rule mentioned by Le Blanc f and like 

the cafe of Doe, L^ee of Barnard f 0* another v. Reafin (<i), 

where, after an eltate to the teftator's niece for life, there 

was a limitation to fuch ifTue of the niece as ihould be liv-^ 

ing at her death, and to the heirs of fuch iiTue ; but which 

was followed, not only by the words, and ** in cafe my 

'* niece Jball die without ijfue of her body then livings' but 

alfo by thefe words, ** or in cafe all fuch iffue fhall die nvith- 

« out iffue:' 

The court took till this day to confider. Lord Maks-' 
FIELD obferving, that the cafe muft be determined exadly 
in the fame manner as if Jeffrey had had children. 

His Lordihip now delivered the opinion of the court, as 
follows : 

Lord Mansfield, — Neither fide thought it could be 
maintained that Jeffrey took an eftate-tail. The WDrds, 
*« and in cafe he dies without iffue^* being tacked to the 
preceding claufc, muft mean the fame thing as ** and in 
*< cafe he dies without children.** But, for the defendants, 
it was contended, that both the limitations over were con- 
tingent remainders in fee ; and, for the plaintiff, that the 
firlt was a contingent remainder in tail, and the fecond a 
vefted remainder in fee. None of us have a doubt but 
that both arc contingent remainders. There are no ex- 
[ 268 ] preflions to reftrain the fcnfe of the word •* heirs** in the • 
limitation to Jeffrey's children. If Jeffrey had children, 
the teftator meant to give them an eftate in fee. Upon the 
contingency of his not having any, he meant the eftate to 
go immediately to his daughters in fee. The word ** heirs,** 
in the limitation over to the daughters, certainly docs not 
mean " heirs of the body/* and we cannot give the fame 
words two different fcnfcs, in different parts of the 
fame will [ i ]. 

The Pofea to be delivered to the defendants [f 76]. • 

{a) B. R. r. 28 Üf 29 Geo, 2. cited ' [f 76] Hi/e Denn, Lejßee of Geeringr 

at iiiree in 3. WH . 244. v. Shenton, B. R. U. 16 Geo. 3. Cmif. 

[ijin Webb v. Hearing, the word 410. Doe, Leffee of Han/on, y. FjlJes, 

•* beirs" did not occur in the hß li- B. R. T. 18GV0. v Cowp. 831. 


SiMOND and Another againß Boydell. Wrd il^ Vd ^ 

THIS aftion was brouirht a^ainft an underwriter, for a ^ 
r ^rm ^ «1 /• t !• On an Ju- 

re turn of premium. Ine material part of the policy funncc on 

"Was in thefe words : " At and from any port or poits in goods»--to 

** Grenada to London^ on any (hip or (hips that ftiall fail ^« ftippcd on 

« on or between the firft ot May and the firft of Auguß j^.*»"^? ^*'•- 

** 1778, at eighteen guineas per cent, to return 8 /. per cent, return part^f 

" if fo^^^ from any of the Weß India iflands, with convoy the premium, 

" for the voyage {a)j and arrives*^ At the bottom there " if faiu with 

was a written declaration, that the policy was, ** on fugars, ^, '««^ ^»^ 

** (the mufcovado valued at 20 /. per hogfliead,) for account thc'an^al of 

*' of L. ^ being on the firft fugars which (hall be fliipped the (kip is what 

** for that account." The (liip, the Haniey^ failed, with >* meant, and 

convoy, within the time limited, having on board fifty-one *"* ^V^* '"f" 

hoglheads of mufcovado fugar belonging to L. ^ She made'on the 

arrived fafe in the Downs^ where the convoy left her; whole Aim 

convoy never coming farther, and indeed feldom beyond infured, al- 

Portßfiouth. After (he had parted with the convoy, (he ^°"?^i^*'* 

ftruck on a bank called the Pan Sand, at Margate, and average JoJT 

eleven of the fifty-one caflcs of fugar were wafhed over- on the^of^. 

board, and the reft damaged. The fhip was, afterwards, 

got off the bank, and proceeding up the River, arrived fafp 

in the port of London, and was reported at the cuftom» 

houfe. The fugars faved were taken out at Margate, and, 

after undergoing a fort of cure, by a perfon fent from town 

for that purpofe, they were carried to London in other vef- 

fels ; and the forty hogflieads being fold, produced 340 /. r 269 1 

Jnftead of 800 /. which was their valuation in the policy-. 

The defendant had paid into court the value of the fugars 

loft, and a return of 8 /. per cent, on 340 /. The plaintiffs 

infifted, that they were entitled to have eight per cent, alfo 

returned on the valued price of the eleven hogftieads of 

fugar which were loft, and on the difference between what 

^he remaining forty hogftieads produced, and their valued 

price. The caufe was tried before Lord Mansfield, at 

CuJldhall, at the Sittings after laft Trinity Term {b), when 

a verdid was found for the plaintiffs, to the amount of 

their demand. On Monday the 8th of November, Bearcrofi 

obtained a rule to ftiew caufe, why there fiiould not be a 

new trial, which was argued this day. 

The Solicitor General, Dunning, and Douglas, for the 

plaintiffs, — Bearcroft, Lee, tlwA Davenport, for the defendant. 

For the plaintifts* it was infifted, as at the trial, that 

jhe w^ord " arrives applied only to the arrival of the 


{a) Supra, Lilly y, Ewer, H. 19 Gep. {b) Thurfday, 17th Jvb ^779' 
3. p. 72. 



(hip. That, in policies of this fort, the intention is, that 
^^_^^^ the underwriters fliall take the war ri(k upon themfelyes, 
Simond"^ ^"* ^^^^> ^f ^^*^ ^^^^^ *' protcfted by convoy from that ri/k^ 
againft and aöually arrives, they (hall then return as much of the 
Boy DELL, premium as was meant to cover it. That this is more ad- 
vantageous for them, than when they receive the ^/5ör/ or 
ftace premium, and the infured warrants a departure with 
convoy, and runs the hazard bf captures ; becaufe, in 
fuch cafes, the underwriters muft pay the whole lofe, for 
the Jh^rt premium, if the (hip fail with convoy, although 
ilie mould founder as foon as (he gets out of the harbour \ 
whereas, on a policy like the prefent, by the addition of 
the condition of arriving, they keep the long premium, 
unlcfs two events happen ; i. that of the (hip failing with 
convoy, 2, her arrival. The additional preniium therefore 
of eight per cent, having been given upon the whole valued 
amount of the fixty-one hogfheads, to be retained only in 
cafe the fliip (hould not fail with convoy, or (hould not 
arrive, the whole ought, from the words, as well as mean-r 
ing of the contract, to be returned, (ince both thofe events 
happened. — (It was fuggcfted, that, after the return of the 
8 /. per cent, the underwriters would be great gainers, for 
that the peace premium from Grenada in fummer, is only 
two, and in winter, three guineas). — It could never be 
meant, by the word " arrive^,** that all the goods (hould 
r 2'*o 1 arrive in a found (late, becaufe it is impo(&ble in fo long a 
vovage that fome proportion, greater or lefs, (hould not be 
loil, or damaged. The very ufe of the word in the fingu- 
lar number (hewed the general underftanding that it wa^ 
meant to apply to the (hip. 

On the odber fide, it was contended, that the return of 

premium to which the plaintiffs were entitled, could, at 

moft, only be on the fum produced by the fugars which 

had afcuaUy come to 'London. The words in the policy 

muft be applied to the fubjecl-matter of the infurance, 

which, in this cafe, was on goods, not on the (hip, and 

therefore the condition of arrival applied to them. They 

had not all arrived at London^ nor any part of them in the 

vefTel in which they had failed from Grenada ; fo that the 

defendant might here have fairly contended, that, as the 

(econd branch of the condition had not been performed, he 

was not liable to make any return. However, eight per 

I ftnt. on the produce of the fugar which was aäually 

f brought to London had been paid into court ; but if it wer^ 

^ to be held, that the defendant muft pay the valued amount 

of the fugars loft, and the balance oetween the valued 

price and a£tual produce of the fugars Faved, and alfo re* 

turn eight per cent, upon the whole, the infured would bf; 

gainers confiderably by the lo&. This would be clear upon 

10 confidcrin^ 

!N tttfi T^^ENTIETli tEAk OV GEORGE IH. 270 

confidering that, in calcttlatihg the value ih a valued policy, • J yjQ. 
the merchant includes thfe full premium of infurance. The ^ - - j 
10 /. at which each hogfliead of fugar was valued in this '6imond 
cafe coniprchcnded, over and above the value of the fugar, again ft 
an addition at the rate of eighteen guineas pn' cent, upon Boydell. 
that value [1]. If therefore the infured were to be paid 
20 /. for each hogfhead of fugar loft, and alfo eight per 
cent, more, as a return of premium, they would get 8/. 
fer cent, more by the lofs of the fugar than they would 
have got by it if it had arrived. But thi^ would be con- 
trary to the nature of infurance, which is a mere contraft 
of indemnity, not of- profit. 

Lord Mansfield, — ^The antient form of a policy of in- 
furance, which is ftill retained, is, in itfelf, very inaccurate, 
but Ifength of time, and a variety of difcufBon and deci- 
(ions, have reduced it to a certainty. It is amazing, when 
additional claufcs are introduced, that the merchants do [ *7' 3 
not take fome advice in framing them, or beftow more 
confideration upon them themfelves. I do not recoHeft an 
addition made which has not created doubts on the con- 
ftruöion of it. Here a word or two more would have 
rendered the whole perfeöly clear. However I have no 
doubt how we muft conftrue this policy. Dangers of the 
fea are the fame in time of peace and of war^ but war in- 
troduces hazards of another fort, depending on a variety 
of circumftances ; fome known, others not, for which an 
additional premium muft be paid. Thofe hazards are di^ 
minifh^d by the prote£lion of convoy, and if the infured 
will warrant a departure with convoy, there is a diminution 
of the additional premium. If the infured will not war- 
rant a departure with convoy, he pays the full premium, 
and in that cafe the underwriter fays, *' If it turn out 
** that the fhip departs with convoy, I will rtturn part of 
^* the premium." But a fliip may fail with convoy and be 
feparated from it by a ftorm, or other accident, in a dav 
or two, and lofe its protection. On a warranty to fad 
with convoy, ttat would {a) not be a breach of the con- 
dition ; but, to guard againft that rifk, the infured 
adds, in policies of the prefent fort, " the fliip muft not 
.*^ only fail with convoy, but ftie muft arrive^ to entitle 
** you to the return." The words ** and arrives^ do not 
'mean that the ftiip fhpill arrive in the company of the con- 
voy, but only that ftie herfelf (hall arrive. If flie does, 
that ftiews either that (he had convoy the whole way, of 
did not want it. But, in the ftipulation for the return of 
premium, no regard is had by the parties to the condition 


[i] The whole argament turned praftice, but was not fupportcd by any 
upon this fugecflion, which was faid proof, in this cafe, 
to be füunded on the acknowledged {a)F'tJe/upra,Lilljy.E'wer,p.y2,'/$, 



J 77()« ^f the goods on the arrival of the (hip. The conftruaion 

^ *_^ contended for by the defendant, is adding a conunent 

SiMowD longer than the text. If it had been meant that no return 

agatnft • (hould be made unlefs all the goods arrived faftj they 

PoyDSLL. would have faid, " if the (hip arrive with all the goods ^ 

or " fafelj with all the goods.** Tlie total or partial lofs of 

• the goods was the fubjed of the indemnity, and mud be 

paid for by the underwriter« But, as to tne return of the 

additional premium, whether the goods arrive fafe or not, 

makes no part of the queilion. The fingle principle which 

mud govern is, that in the events which have happened, 

the war-rifle has been rated too high. 

WiLLps, and AsHHURST, Jufiicesy of the fame opinion. 
[ 272 ] BüLL^R, Jußicii — I am of the fame opinion. The 

queftion is for the dccifion of the court, not of a jury, 
fmce it arifes on the conftruftion of a written indrument« 
What gives rife to an increafe of the premium ? The danger 
of capture. When that danger is dimhiifhed, the coiv. 
druftion mud be, that there fliall be a proportional return 
of premium. 

The rule difcharged. 

Thurfday, HoTHAM and two Others ascamß the East?« 

iSth Nor. y ^ o . *^ 

India Company^ 

If one cpve- ^T-'HE flilp Torhj of which two of. the plaintiffs were 
"uier^to'do' pnrt-owners, and the third captain, Iiad been freighted 

m certain aft hy a charter-party between them and tiic Eaß^India Com-^ 

jn confidera. fany^ on a voyage from London to India and back to London, 

tion of a re- On her return home, (he met with a mofl: uncommonly 

rtherV^vcnt vio^'^^ ^«^^1, off Margate^ where {he was ftranded, on 

the ftipulatcd the firft of January 1779, and funk under water. By this 

thing from niisfortune, a great part of her cargo ^bcing falt-petre) was 

l>cing literal- \o^\ the principal part of what remanied, which confided 

aniTaccept^üf ^^^^^y ^f pepper, was greatly damaged by the fca-water, 

an equiva- but was got out of the fhip, by perfons fent down by the 

lent, he (Tiay Qompany^ and brought to town in other vefTcLs, where a 

be fued for particular procefs was employed, at a great cxpcncc to the 

and ^hc*ea- Company^ to reftore it, in fome degree, and render it mar- 

fon of the ketable. The fliip, after being in a great meafure un- 

fion-compli- loaded, was, with much difficulty, raifed out of the water, 

ancc with the j^d arrived in the port of London^ with a fmall part of the 

m7^hl^!Zl' ^^^8^ ^^^^ remaining on board. The plaintiffs infifted, that 

r«/— Freleht- (he had arrived at her port of difcharge, and had performed 
ers of (hip» hci 

under char- * 

(er- parties with the Eaß India Cmpary are not anfwerable for damage, or hfi, occnfioned 
by the aft of God^ Shi f- damage, in thofe charter-parties, lucans, damage fiorn neg* 
licence, infuQciency, or bad itowage in the (hiD, ' ^* 


her vopge within the meaning of the charter-party, and 1 770« 
that, notwithftanding the misfortune which had happened, i ^ 

and the lofs of part, and the damage done to the reft, of Hot ham 
the cargo, they were entitled to be paid the freight of the again ft 
goods (aved, and th^ demurrage. The defendants Con- The East- 
tended^ Firfi^ that in the events lyhich had happened, India Com- 
they were difcharged from the payment of any freight, or ?^*'X« 
demurrage 5 Secondly, tha)t if they were liable for freight 
and demurrage, yet, by certain claufes in the charter- 
party, they were entitled to ded^fl therefrom the value of 
the goods loft ; the lofs upon thofe which were faved in a 
damaged ftate ; and the expences they had been put to in 
getting thofe damaged goodß to London and rendering them [ 273 3 
marketable, A common aäion of covenant was at firft 
brought on the charter-party, to which the defendants 
pleaded ; but afterwards both parties confented to try the 
queftions in difpute between theni in four di^erent feigned 
iflues, which were as follows : 

1. Whether the plaintiffs were, or were not, entitled to 
any and what freight or demurrage in refpe^ of ^e (hip 
and voyage, in the charter-party mentioned ? 

2. Whether the plaintiffs were liable to pay or allow to 
tJie defendants any fum or fums of money in refpe6l of the 
goods and merchandizes which had been (hipped on board 
the faid fliip, and which had been lofi, or not delivered to 
^e defendants on her arrival in England ? 

3. Whether the plaintiffs were liable to pay or allow, 
Ö*r. in refpeft of a certain quantity of pepper which had 
been fhippcd, l^c, and which had been prejudiced, wet, 
and damnified, before the arrival of the (hip at London ? 

4. Whether the plaintiffs ought to pay or make fatisfac- 
tion to the defendants, for the expences tliey were at, in 
faving and bringing to London certain goods and merchan- 
dizes which were taken out of the fliip when (he wa« 
ftranded, or otherwife concerning the faid goods ? 

Thefe ifTues came on to be tried, before Lord Mans- 
J^IEI.D, at Guildhall, at the Sittings after laft Trinity Term. 

There were two claufes in the charter-party on which 
the defence on the firß ifTue was founded, v/z. 

I. " And, as touching the freight to be paid or allowed 
** by the Company, ft is agreed, and the Company covenant 
*' with the faid part-owners, that the Company (hall, and 
?* v/ill, in cafe and upon condition that the Jbip performs her 
** voyage, and arrives at London infafety, and the faid part- 
** owners and mafters do perform the covenants on their 
** part, and not otherwifi, well and truly pay and allow the 
f' freight herein mentioned (0).'* 

;2. " It is hereby agreed, that, in cafe the fhip does not 
5^ arrive in fafcty in the river Thames^ and there make a 

♦ " right 

i^) P. 8. of the pjiated fbnn of the Eaß^lndia Company*^ charter-parties. 


1 77(), •* right dclivcnr of the wMe and enthn cnrgo and ladmg cm 

-l^ , f •* board the faid (hip as aforefaidi the Gor^nj (hall not be 

HoTH A M •* liable to pay any if the fums tf money herein hefrtr ttgrtei 

again ft ^^ to be faid for freight and demurrage^ hor fubjed to airy 

The East. •< demands of the feid part-owners or mafter on account 

Ik Di A Com- <« of the faid (hip's earnings m freight^ Toyages for Ac 

•rAÄT. u Company ^ or on account of any other employment, 

I ^74 } ^' ^^y other law» nfage, praftkcj or dtftoiiiy iiötwidi-» 

" ftanding (^)." 

The following claufe was the foimdatioa cf ^ defence 
on tht fecond iflue. 

♦• And, if any of the homem^rd-bovtid eatgo fliaH tc 
** h/l or undelivered into the faid Companfs wardkufei at the 
«* faid fliip's arrival in England^ (except that nd f«ch pay* 
'* ment (hall be made if there happens art utter i^ieritabie 
** lofs of (hip and cargo, nor (hall aiiy other payinent be 
«^ made for fuch goods as (hall neceffarily perifli or be caft 
*^ into the fea for the prefervation of the Ihip and cargo, 
*< than by an average to be borne by fliip, freight, dc- 
«* murrage, and cargo,) the part-ownets, and mzütr^Jbaii 
** pay or allow to the Company, the prime coft of f»ch goods, 
** -and 30 /. for every 1 00 /. on fuch prime coft (r).** 
On the third iflfue they relied on the following claufes : 

1. " But, if any of the homeward-bound cargo, when 
« delivered into the Cofnpanys warehoufes in EngUmd^Jball 
*^ be found to be prejudiced, wet, or damnified, hy any occa^ 
•* fon or accident whatfoevery it (hall be lawful for the Com^ 
'* pany to refufe fuch goods, and in fuch ca(c the part- 
'* owners and mafter (hall take them, and aUow to the 
'* Company the fums which they are invcHced at, with 
'* charges, cuftoms, and duties; and in fuch cafe the 
*« Company (hall pay no charges or freight for the faid 
^' goods (o prejudiced, wet, or damnified, unlefs in cafe$ 
*^ of daitiaged pepper, which the part-ownets and iBftfter> 
" are \q allow the Company for at the current price of 
•^ found pepper in London^ and the Company arc to pay . 
*' the freight and charges on fuch pepper as if it were not 
•« damnifiVsd (rf)." 

2. " But the faid part-owners (hall not be charged with 
** any fum of money in refpeft of goods damaged on boar4 
^< the faid (hip, but fuch as (hall, by the condition and 
<* appearance öif the package thereof, or by fome ofher 

'« reafonable proof, appear to htßip^mages any thiAg 
*• herein-contained to the contrary thereof in anySi^c not- 
«* withftanding (e)'^ 

• -3. A provifion for paying dejnurrage to the owners, if 
the (hip (hould be difpatched fafe from the Malabar coaft, 
and (hould not make the pa(rage in a limited ^e; and 


{h) Ibid. p. II. (d) Ibid. p. 4, 5. 

(f)^ÄV/.'p, 4, 5. {e) Uid. f^ i^. 



which adds, ** and the owners fliall not be rcfponfiblc for 1 770, 
^^ any damage that may happen to the homeward-bound ^ ^ ^^* . 
^* cargo, occafioned by Jucb late dij^tch {fy Hot ham 

* Tne jury havingfound foi the plamtifii on the three againft 
firft iflues, {viz. i. That freight was to be paid for all the The East- 
Company^ goods delivered, and demurrage, as fpecified in India CoH* 
the charter-party ; 2. That the plaintiffs were not liable to pany. 
pay for any goods loft, or not delivered j 3. That they *C ^75 3 
were not liable to pay or allow for any lofs on the pepper), 
and for the defendants on the laft, (vi%. That the plain- 
tiffs were to pay to the defendants their proportion of the 
expences in faving the goods and merchandizes, by way 
of general average, as fpecified in the charter-party, and 
the whole extra expence of bringing the eoods Arom Mar^* 
gate) J a rule was obtained by the defendants to fliew 
cau{e, why there fhould not be a new trial on all the ifiue9 
found againft them -, and the cafe was argued this day, by 
Lee^ Davenportf Baldwin, and Er/kine, for the plaintiffs» 
. and the Solicitor General, and Dunning, for the defendants. 

The counfel for the defendants reüed, as to the freight 
and demurrage, on the ftrid terms of the inftrument, by 
which it was ftipulated, that neither (hould be paid for» 
unlefs the ihip fhould arrive in fafety in the river Thames, 
and there make a right delivery of the whole and entire 
cargo. If the plaintiffs had proceeded in covenant, fach 
an arrival and fuch. a delivery muft have been averred, 
and was now neceffary to have been proved to make out 
the cafe on the part of the plaintiff^s. In a court of law, 
the ftipulations of the deed muft appear to have been 
exactly complied with ; and, if any relaxation was to be 
allowed, on prmciples of equity, recourfe muft be had to 
a court of equity. 

The fame reafoning was equally applicable to the fccond 

On the third, they infifted, that ^^ßip^amag^ was fy- 
jionimous to " fca-damage," and meant, damage happen- 
ing at fea, in contradiftinftion to any injury the goods 
might have received before they were put on board, not 
merely damage at fea occaßoned by infufliciency in the 
ihip or the mifconduä or negligence of the mafter or ma- 
riners, which was the interpretation contended for on the 
part of the plaintiff's. Without any ftipulation, the own- 
f^rs and mafter would have been anfwerable to the Company 
for loffes arifing from thofe caufes. The word ^^ ßip^ 
f* damage^* it is true, was meant to controul the general 
words in a preceding part of the inftrument, by virtue of 
which the piaintifi^s would otherwife have been liable if the 
goods had been prejudiced or damnified by any occafion or 
accident of ^nyfort: but, according to the conftru£lion 

(/)ÄiV.p. i4^. 


1 770« contended for by the plaintiffs, this prior claufe would be 

I '_'_ I totally annulled by the other. The faving in cafe of a late 

Hot HAM departure from the Malabar coaft, afibrds an additional 

mgaind proof that fea-hazards from weather, dorm, ÖV. were 

The East- meant. For how could a detention beyond the ufual fcm- 

]ndia Com- fon increafe the danger of damage from infufficiency in the 

FAKY. vcfl'cl (independent of what the weather might occafion), 

or from mifcondudl in the mailer or the crew ? 

On the other fide, it was infilled, that this fort of ifi- 
ftrument ought to receive a liberal conftrudHon. The 
non-compliance with the letter of it, in not delivering the 
cargo in the river Thames^ was owing to the aft ot the 
defendants themfelves, in fending their (ervants on board, 
. who took it out of the ihip without any participation with 
the plaintifFa. This difcharged them from the ncceflity of 
performing (Iriclly that part of the contrafk (as to which 
the cafe of Sparrow v. Caruthersy rejjorted in Strange (<i), 
was in point), and the difcharge might have been averred 
in an aclion of covenant. That, as to the goods damaged 
or loll, the charter-party viras certainly very confufed and 
ill digelled, full of contradiftions, owing to the circum- 
ftance of different claufes having been added at different 
times, without attention to the coherence and confiftency 
of the whole. But it mud be interpreted in a manner the 
mofl confiftent with go«d fenfe, and the nature and gene- 
ral tendency of the whole contra£l. The expreflion of 
** ßiip'damage^ could not be ufed in oppofition to damage 
received before the goods are put on board, becaufe the 
owners could never be anfwerable for that fort of injury, 
and therefore it never could have been thought ncccffary to 
introduce words to declare that they were not [i]. It 
mud mean damage received on board the (hip, and occa» 
fioned by negligence or mifcoiiduft ; furely not Uamage 
arifmg, as in the prefent cafe, from the aft of God, 
which no human care could prevent. If there were any 
doubt, the fpecial jury who had exercifed their judgment 
upon it were certainly moil competent to determine it, 
|io qucftion being more exclufively fit for their confidera- 
tion. The owners therefore were by that claufe exempted 
from refponfibility for any other fort of damage but fhip- 
damage io underllood, and the foregoing words ** by any 
C ^77 ü " accident whatfoever" were thereby controuled and re^ 
ftrained. Then, as to the goods loll, this being the clear 
meaning of fliip-d?muge, a;id uniyerfally fo underllood by 


{a) T. i8 Geo, z, Sfr. .1236. charter-party, as it then flood, woulj 

[1] It \yas raid, that the claufe men- make the owners liable for loffes by 

tioning (hip-damage was firll intro- florms, and with the cxprefs dei^n of 

duced in 1759, when the Ilchefiej» Emfl- preventing that conßruÄion, this new 

Indiaman was loft. The then Solicitor claufe was adopted. 
General had given an opinion, that the 


perfons convcrfant with the fubjefl:, it could never be the 1 770. 
intention of the contrad^, that, though the owners were ^ j 

not to be anfwerable for goods damaged^ they were for Hot ham 

Soods /g/?, by the aft of God. The ftrift compliance with againft 
lie words on which the defendants relied as to the goods The East- 
loft, was never ej^pedtcd. '^The cargoes of Ind'tamen are India Com- 
never delivered into the Companys warchoufes, but only fanv,- 
into lighters belonging to the Company. Edwin v. The Eaß 
India Company (/?), and Edwards v. Child (b\ were cited. 

Lord Mansfield, — I have no doubt, but that, if the 
delivery at Margate was, in the contemplation of the 
parties, fubftituted for a delivery at London j it might have 
been averred in an aöion of covenant (r), becaufe there 
can be no material fad in a caufe which may not be put 
upon record, or given in evidence on the general UTuc. 
The Company are not liable to any imputation. The part 
they took, when the calamity happened, was what hu- 
manity and juftice required, and can be pf no prejudice to 
cither fide. The charter-party is an old inftrument, in- 
formal, and, by the introduftion of different claufes, at 
different times, inaccurate, and fometimes contradiftory. 
Like all mercantile contrafts, it ought to have a liberal 
interpretation. In conftruing agreements, I know no dif- 
ference between a court of law and a court of equity [i]. 
A court of equity cannot make an ^cement for the 
parties ; it can only explain what their true meaning was ; 
and that is alfo the duty of a court of law. I told the jury, 
that the inftrument muft have a liberal conftruftion, ac- 
cording to the true intention, and I left the conftruftion ' 
to them more than in common cafes ought to be done, 
becaufe the province of conftruing written inftruments 
belongs to the court. On the point of Jhip^damage I had • 
confiderablc doubts, which I ftated fully to the j^ry. The 
Company have thought fit to bring the cafe before the 
court, but, upon hearing the argument, I am now clear 
that the verdift was right on all the ifTues. As to the 
firft, the Company^ by receiving part of the cargo, have 
waved all objeöions concerning the delivery [2]. The 
principal qucftion is, whether the owners are to pay for L 278 3 
the damage occafioned by the ftorm — the aft of God j and 
this muft be determined by the intention of the parties, 


{a) Cane, H, 1690. 2 Vem, 210. " a juft demand, and ought to be re- 

\b) Cane, M. 1716. 2 Fern, 727. " lieved in equitv." 

\c) Fide Jones \, Barkleys infra^T, [2] His Lordfhip had interrupted 

21 Ceo. 3. p. 684. the defendants' counfel to afk» whether 

[1] Inthecafeof£</w/» V. /i&^£Ä^- the Company could mean feriouüy to 

India Company i Fernon makes the court infift, that they were to have the ufc of 

fay, " Though the charter-party is fo the fhip, and the goods which had 

" penned, thai nothing can be reco- been delivered, and not pay for tke 

** vered at law> yet the plaintiffs have freight of them I 



The East- 
India Com« 



and the nature of the contraä. It ia a charter of fretght» 
The owners let their (hips to hire, and there never was an 
idea that they infure the cargo againft the perils of the fea* 
The Company (land their own infurert* Words muft be 
conftnied according to the fubjed*matter. What are the 
obligations upon the ownets which ari(e out of the fair 
con(lru£lion of the charter-party ? Why, that they (hall 
be anfwerable for damage incurred by their owm fault, or 
that of their fervants, as from defers in the (lup, or im« 
proper (towage; fuch as mixing conunodities together 
which hurt one another, tsfc. If they were liable for 
damages occafioned by (lorms, they would become in- 
furers, not (ireighters. Many of tne difficulties which 
have been raifed, are occafioned by the multiplicity of un- 
necefiary words, introduced with a view to be moce ex- 
plicit ; an efFed which often arifes from the fame caufe in 
aäs of parliament. It feems the queftion had occurred in 
the year 1759, and the claufe mentionins flup-damage 
was introduced in order to fix the rifles ror which the 
owners were to be anfwerable. That clau(e rides over all 
the former part of the charter-party. As to the other 
point of the goods loßj the whole is one entire contra^ and 
muft be underftood in a manner con(iftent withitfelf ; and 
it never could be intended, that the owners (hould be pro^ 
te£led from the le(rer lofs, and remain anfvendile for the 

WiLLES, Juf'tce^ abfent. 

AsHHURST, Jufticej — I am of the fame opioion» Hie 
confideration, that the owners are not infurers, controuls 
every branch of the inibrument. If the provi(b concerning 
(hip-damage had been wanting, there might have been 
fome doubt \ as the cafe ftands there is none. 

BuLLER, Jußice^ — I am of the fame opinion. There 
could have been no doubt on the fubjeä of the firft iflue, 
if the parties had gone on in the ufual way, by an a£lion 
of covenant on the charter-party. If an aci: uxKiertaken to 
be done is difpenfed with by the other party, it is fufficient 
fo to ftate it on the record ; fpedal pleading being nothin|^ 
but a bare narration of fa£ls in a legal form. 

The rule difchargedt 

Moss againß Gallimore and Another«. 

C 279 ] 

19th Nov# 

A mortgagee, | N an aöion of trefpafs, which was tried before Narbs, 

«otTcf of tSc >-^*^'» ^^ *^ ^** ^^'^"^^ f°^ Stafford/hire, on not guilty, 

mortgage to pleaded, a verdid was found for the plaindff, fubje^ to 
the tenant in • the 

poflHRoD under a Icafc prior to the mortgage» it intitlcd to the rent in arrear at tht time 
of the notice, at well at to what accrues afterwards, and he may diltrain for it after . 
fuch notice.— In a notice for the laic of a diftref» under a IT. U Af. €. 5. it it llQtpf«. 
cclfary 10 mention when the rent became due for which the di ftrefa was nade« 


the epinioa of the court» on a cafe referr<KL The eafe 1 770« 
ftated as follows : — One Harren, being feifed in fee, on ■ , * ^ 

the %& of January l^^^J demifed certain premifes to the Moss 
plaintiff for twenty years» at the rent<<^ 40/« payable agaiol^ 
)Fearly on the 12th of Majf and» in May 1772, he Galü« 
mortgaged the fame premifes» in fee» to the defendant moux« 
Mrs. GaUimore. Mofs contiuued in poffei&oa from the 
date of the leafe» and paid his rent regularly to the mort* 
gagor» all but 28 A which was due on and before the month 
of November 1778» when the mortgagor became a bank« 
rupt» being» at the tme» indebted tp the mortgagee in 
more than that füm for intereft on the mortgage. On the 
3d of January 1779^ ooe Harvar yrent to the plalntidj^ o» ' 
behalf of GaJiimore^ (hewed him the mortgage deed» and 
demanded from him the rent then remaining unpaid. This 
was the iirft demand that GalJimore made of the rent. The 
plaintitf" told Barwar, that the aflignees of Harrifon had 
demanded it before» viz. on the 31(1 of December: but^ 
when ijarwar faid that GaUimore would diftr^a for it if it 
was npt paid» he faid» he had fomit cattle to fell», and 
' hoped fhe would not diftrain till they were ib(d> when he 
would pay it. The plaintiff not having paid according hü 
this imdertaking» the other defendant» by opder of Gßt&^ 
more^ entered» and diftrained for the rent» and theteupoi» 
gave a v^ritten notice of fuch diftrefs. to. the plaintifiv i& 
the following words : <^ Take notice» that ( have thi^ day 
'< feized and diftrained» Isfc by virtue of an* authority» 
«^ ÖTr. for the fum of 28 /. being renty and. arrears of rent^ 
<< due to the faid JL^tt Gallimore» at Michaelmas iqft paß^ 
^^ forj &c. and unlefs you pay the faid renty &c." He ac-. 
cordingly fold cattle and goods to the amount of 2%L a/. — 
The queftion ftated for the opinion of the court» was». 
Whether» under all the circumftances» the diftrefs could, 
be juftified? 

Woody for the plaintiff. — Bowery for Ae defendants. 

Woody — ^The plaintiff's cafe refts upon two grounds: 
I. The defendant» GW/im^if» not being», at the time when 
the rent diftrained for became due» in the a£tuaL (eifin o£ 
the pnemifcs, nor in the receipt of the rents and. profits» Ihe £ 280. J 
had no right to diftrain. 2. The notice was irregular» 
being for rent due at Michaelnuuy whereas this rent waa 
only due, and payable in May, — i. Before the ftatute of 
4 Anne^ c. i6. («)» a conveyÄnce by the rcverfioner was 
void without the attornment of the tenant (^)» which was 
neceffary to fupply the place of livery, of feifin« Since 
that ftatute I admit that, attornment is no longer neceffary 
to give.effeä tP the does not follow from 
thence» that a grantee has now a right to diftrain, before 
he turns his title into aöual poffeflion. The.mortgagpfy . 

(a) i9. (^) C». to/. 3P9., «. *. 


1 77Q« (according to a late cafe (r),) is tenant at will to the mott^ 

y ■ f gagec, and has a right to the rents and profits due before 

Moss ^is will is determined. Nothing, in this cafe, can amount 

•gain it to a determination of the will, before the demand of the 

Gal LI- rent on behalf of the mortgagee, and the whole of that 
MOTRE» for which the diftrefs was made became due before the 
demand. If the mortgagor himfelf had been in pofleffion, 
he could not have been turned out by force ; the mortga- 
gee muft have brought an ejectment. The affignees had 
called upon the plaintiff for the rent, as well as Gallimare, 
and how could he take upon himfelf to decide between 
them i The mortgagee fhould have brought an qe£bment» 
when any objcäion there might have been to the title 
could have been difcufled. It does not appear from the 
cafe, that the intereft in arrear had ever been demanded 
of the mortgagor, and there is a tacit agreement, that the 
mortgagor (hall continue in pofTefTion and receive the rents 
till default is made in paying the intereft.-«2. Hie notice 
is irregular, and, on that account, the diftrefs cannot be 
juftified. By the common law, the goods could not be 
fold. The power to fell was introduced by the ftatute of 
William and Mary (rf), but it is thereby required, 'that 
notice fliall be given thereof " with the caufe of taking^* 
&c. Thefe requifites are in the nature of conditions pre- 
cedent, and, if not complied with, the proceedings are 
illegal. It is true, this irregularity, fince the ftatute of 
1 1 Geo. 2. {e)y does not make the defendants trefpaflbrs 
ab initio^ but the a6Hon of trefpafs is ftill left by that 
ftatute, for fpecial damages incurred in confequence of 
the irregularity. 

Lord Mansfield obferved, that the plaintiff was pre- 
cluded, by the cafe, from going for fpecial damages arifing 

[ aSi ]] from any fuppofed irregularity in the fale, no fuch fpecial 
damages being found, and the queftion ftated being only, 
whether the diftrefs was juftifiable ; and Buller, Juftice^ 
faid, that it was not necefl'ary by the ftatute of William Ö* 
Maryy to fet forth, in the notice, at what time the rent 
became due. 

Bowery — ^If the law of attornment remained ftill the 
fame as it was at common law, the converfation ftated to 
have taken place between the plaintiff and Harwar would 
amount to an attornment \ and, when there has been an 
attornment, its operation is not reftrained to the time 
when it was made : it relates back to the time of the con« 
veyance, and makes part of the fame title ; like a feoff' 
ment and livery, or a fine or recovery and the deed de- 
claring the ufesj Long v. Hemming (n), Noiv^ however, 


(r) Kiecb v! Hall, /ufra, M. rp {e) Cap. 19. % 19. 
Ceo. 3. /. 21. {a) I Ander/. »56. S. C. C(^§. ^. 

{d) 1 W. 'J M. feß I cap. 5. M* V^9* 


ftny doubts there might have been on this fubjed arc 1 770. 

entirely removed, by the ftatute of Queen Anne^ the words \_ _ j 

of which are very explicit^ viz. {b)^ " that all grants or Moss 

** conveyances of any manors, rents, reverflons^ or r©- againft 

** mainders, (hall be as good and cffeöual to nil intents and Galli- 

'^' pt'^fi^i without any attornment of the tenants, as if more, 

«* their attornment had been had and made." The pro- 

vifo in the fame ftatute {c) which fays, that the tenant 

fliall not be prejudiced by the payment of any rent to the 

grantor before he fliall have received notice of the grant, 

fliews, that it was meant that all the rent which had not 

been paid at the time of the notice fhould be payable to the 

grantee» The mortgagor is Called a tenant at will to the 

mortgagee. Ttat may be true in fome refpefts, but it is 

more correal to confider him as ading for the mortgagee 

in the receipt of the rents as a truftee, fubjeä to have his 

authority for that purpofe put an end to, at whatever time 

the mortgagee pleafes. It is faid, the proper method for 

the mortgagee to have followed would have been to have 

brought an ejeftment, but it is only a very late praöice to 

allow a mortgagee to get into the pofleffion of the rents, 

by an ejedment againft a tenant under a leafe prior to the 

mortgage {d). The intereft^ it is faid, is not ftated to have 

been demanded; but the cafe ftates, that, at the time of 

the notice and diftrefs, more than the amount of the rent 

in arrear was due. It is faid, the tenant could not decide 

between the mortgagor, (or, which is the fame thing, his 

aflignees,) and the mortgagee ; but that is no excufe. 

He . would have had the fame difficulty in the cafe of an 

abfolute falej a mortgage in fee being, at law^ a com- [ 28a J 

plete fale, and only differing from it in rcfpeft of the 

equity of redemption, which is a mere equitable intcreft. 

The court told him it was unneceifary for him to fay 
any thing on the other point. 

Lord Mansfield, — I think this cafe, in its confe-* 
quences, very material. It is the cafe of lands. let for 
years and afterwards mortgaged, and confiderable doubts, 
m fuch cafes, have arifen in refpeft to the mortgagee, 
when the tenant colludes with the mortgagor; for, the 
leafe protecting the pofleffion of fuch a tenant, he cannot 
be turned out by the mortgagee. Of late years the courts 
have gone fo far as to permit the mortgagee to proceed by 
cjeöment, if he has given notice to the tenant tliat he 
does not intend to difturb his pofleffion, but only requires 
the rent to be paid to him, and not to the mortgagor. 
This however is entangled with difiiculties. The queftion 
here is, whether the mortgagee was or ^as not entitled to 
the rent in arrear. Before th't ftatute of Queen Anne^ 


(<) 4 Anne, r, x6. § 9. ' . {d) Whte v. Hawkins^ Apra, My 

\c) 4 io- 19 O^.^. p. 23. Nue [7], 

Vox.. I. T 


Lavabre and Another agcnnß Wilson;—* 
BizE agatnß Fletcher; — and Lavabre 
igth^Nov. and Another again/i Walter. 

If an Infured HTHE firft and laft of thefe cafes were aAions- on the 
il»-|),]nit the 1 (ime policy of infurancc, on the Carnatic, a French 
fmhlVin tl.c ^""ß. ^»^^'"»''''' 'i^l^e firft was tried at GuUdbalU at the 
j>or!cv, tiom Sittings after Eaßer Term («), and a verdifi found for the 
nccciiity, (he plaintiffs. Afterwards, at the fan\e Sittings (i), Bkze v- 
muil ptirfuc Fletcher^ which was an aflion upon a different policy, but 
aee of nTctJfity on the//i;/^ fhip, came on to be tried; and a verdt£t was 
in the direa "^^^ found for the plaintiff in that caufe, and acquiefced 
courfe, and in in. In Trinity Terniy 19th George III. (f), a rule was 
the (horieft * granted to fhew caufe why there (hould not be a new trial 
tune.othcrwifc j^^ ^,^^ ^^^^ ^j Lavabre v. Wilfon, which rule ftood over 
the underwrit- .,, , . t 1 • 1 o- • e 

ers will be dif- ^"^ ^"^^ term. In the mean time, at the oittmgs after 
charged. Trinity Term^ 19th George III. (rf), Lavabre y. Wa/ter vrzs 

* r 2%" 1 tried, and a verdi6l having been found in that cafe likewife 
^ for the plaintiffs, a new trial was moved for in the begin- 
ning of this term (f), and, a rule to (hew caufe being 
granted, the court direcleil that this laft-mcntioned rule,, 
and that in Lavabre v. JVi/fony (hould come on to be argued 
at the fame time. All the three trials were before Lord 

In Lavabre v. Wilßu^ and Lavabre v. WalteTj the voy- 
age infured was defer ibed in the following words : " At 
" and from Port VOrient to Pondicherry^ Madras and 
** Chinay and at and from thence back to the (hip's port, 
** or ports of difcharge in France^ with liberty to touch in 
** the outward or homeivard-hound, voyage ^ at the Ißes of 
** France and Bourbon^ and at all or any other place or 
** places what or wherefoever." And there vras this ad* 
ditioual claufe in a fubfequent part of the policy, vrz. 
" And it Ihall be lawful for the iaid fhip, in this voyage^ 
** to proceed and fail to, and touch and Itay at any ports 
" or places whatfoever, as well on this fide, as on the 
" other fulc of the Cape of Good Hope^ without being 
** deemed a deviation." 

In Bi7,e V. Fletcher y the defcription of the voyage infured 
was as follows, (being nearly the fame with that com- 
monly ufed in infurances upon Englißj Faß-Indiaf^un : ) 
*« At and from V Orient to the Ißes of France and Bottrbon^ 
" and to all or any ports and places where, and what- 
** foever, in the Eojhlndies^ China^ P^rfia^ or elfewherc, 



(a) Wednefday^ 19th Af/ij, 1779. (^) ^^iday^ 1 6th 7*/^ '779- 

(^) Monday y 31ft M^y 1779. (0 Tuejday^ Cfih No'vemMr 1779. 

{c) Monday, 7th June 1779. 


** beyond the Cape of Gocd Hope^ from place to place, and j 770. 
^ during the fhip's (lay, and trade backwards and for- \ - - j 
** wards, at all ports and places, and until hef fafe arrival Lavabrk 
** back at her laft port of difcharge in France.^* But, at againft 
the fame time that this policy was fubfcribed, there was Wilson. 
a flip of paper wafered to it, and (hewn to the under- 
writers, on which was written the following reprefenta- 
tion (y) : " The (liip has had a complete repair, and is 
** now a fine and good ye(rel, three decks. Intends to fail 
*' in September or OEloher next (1776). Is to go to ^0- 
** deira^ the Ißes of France^ Pondicherry^ China, the I/les 
** of France, and L'Orient.'* 

The (hip did not fail till the 6th of December 1776, and 
did not reach Pond'uherry till the 23d of ^uly 1777. She 
continued there till the 23d of Auguß following, when, C ^^^ 3 
ipftead of proceeding to China, (he failed for Bengal^ 
>vhere having pafled the winter, and undergone very con- 
fiderable repairs, (he failed from thence early in the year 
1778, (being the fccond (hip that left the Ganges,) re- 
turned to Pondichtrry, and after taking in a homeward- 
bound cargo, at that place, proceeded in her voyage back 
to L' Orient, but waß taken in October in that year* by tlie 
Mentor privateer. The ufual time in which the dire£t 
voyage between Pondicherry and Bengal is performed, is 
fix or feven days, but the Carnatic was about fix weeks in 
going to Bengal, and two months on the way back from 
jthence to Pondicherry. Both going and returning, (he 
either touched at, or lay off, Madras, Mafulipatam, Vift^ 
gapatam, and Yanpn, and took in goods at all thofe places. 

I. On the trial of Lavabre v. Wilfon, it was, in the 
opening for the plaintiff^s, infifted, that, under the general 
liberty given by the policy of touching at all places what- 
foever, the ve(rel might go to Bengal, which, by the ope- 
ration of thofe words, was as much part of the Voyage, as 
if it had been exprefsly named. That the fliip being 
there, the voyage might be abridged, and her further pro- 
grefs to China abandoned, for that ve(reJs infured ^may 
äways return back from any point within the limits of the 
voyage contained in the policy. Lord Mansfield, how-' 
ever, having intimated a clear opinion that the general 
words were, by the exprc(fipns of " in the outward, or 
** homeward-bound voyage,** and ** in this voyage,** qualified 
and rcftrained fo as to mean " all places whatfiever in the 
** ußtnl courfc of the voyage to and from the places mentioned in 
'* the poliiy,* this ground was immediately abandoned, and 
never farther mentioned by the counfcl for the plaintiffs in 
the progrefs of thefe caufes [i]* '^^^ plaintifi's refted 


(/) 5;//rÄ,/. 12. Note [4]. col. 2. nions oi Dutch 2X\6, French lawyers in 
[1] ihe plaintiffs hadleveral opi- their favour» on this point. 


1 770« ^^^^^ ^^^^ chießj on another ground, viz. that the voyage 
I L^ J to Bengal was adopted by ncccffity for the fafety of the ^ 

Lava^re ftiPf ^pon the bond fide opinion of the captain and the reft • 
again (I of the officers, and of one ßerard the fupcrcargo, who had. 

Wilson, the principal management. To prove this ncceflity, it 
was fworn by Bcrard and four mates, that the (hip had 
been detained longer in Europe^ than at firft was forefccn, 
and that (lie met with extremely bad weather on her out- 
war<I paflage, and at Pondicherry was fo leaky, that it 

[ 287 ] appeared to them, upon confultation, that flie muft be 
careened, which could only be done at Bengal^ there being 
no other place fo near as for her, in her then fituation, to 
be able to proceed to it with fafety, where that operation 
could be performed •, for that no harbour between PonM'* 
cherry and the Ganges on one fide, and Pondicherry and 
Bombay on the other, would admit of fo large a veflel being 
hove down, her burthen being near 800 tons. Indeed, it 
turned out when they got to Bengal^ that fhe could be re-r 
paired without careening, but this was only difcovered, 
they faid, after flie was unloaded of much more of her 
contents than could have been done with fafety in the 
open rojd of Pondicherry. All the witncfles for the plain- 
tiffs fwore that they took the refolution of going to Bengal 
much againft th^ir inclination, for that it would have been 
pot only more for the advantage of the owners, but alfo 
more for their private interefl as individuals, to go to China^ 
they having prepared their own adventures for that market« 
ßelides the circumftance of the leak, they afiigned an ad-^ 
ditional reafon for relinquifliing the voyage to CA/z/a, viz^ 
that they had been detained fo long at Pondicherry, fron\ 
delays in unloading their outward-bound cargo, that they 
were not ready to leave that place, till it was too late tq 
undertake the China voyage with any degree of prudence; 
or fafety, and they faid Bengal was the beft place they 
could go to winter at. 

The defence fet up was ; i . That the (hip had never 
failed on the voyage infured, her deftination, tvhenjbe left 
Europe^ having been for Bengal and not China \ 2. That, 
fuppofing her to ]\2l\^ failed on the voyage defcribed in the 
policy, yet her going from Pondicherry to Bengal^ inftead 
of proceeding to China^ was a deviation, and was not 
juftified by necelTity. In fupport of the fr/l ground of 
defence, certain fecret inftruftions were relied upon^i 
which were found on board the fhip, and were addrefled 
by the owners at UOrient to Berard the fupercargo, and 
which, though obfcurely penned, gave great room to con- 
tend, either that at her departure it had been refolved to 
fuhftitute Bengal for the China voyage, or, at Icaft, that the 
alternative was left with Berard, to be decided one way or 
|h^ other, according to certain eycnts in India^ which 



events turned out in the fort of way that, according^ 1779» 

to the inftruftions, was to determine the voyage for Ben-^ \ - - t 

gal. On t he y2rW ground they contended, that from the Lavabrb 

account given by the plaintiffs* own witnefles, there wa& agaiiUl 

no necefhty for going to Bengalj and, that it appeared, Wilson^ 

that, inftead of going dire<9Jy thither, a trading voyage [ 288 J 

had been made from Pondkherry^ which afforded a ftrong 

prefumption, that trading was the object and motive \ 

and that the leak, or latenefs of the feafon, were only 

after-thoughts, and mere pretexts. They called two ox 

three captains of Etigllß Eaß'lndiamen to prove that, in 

the fituation and at the time of year fpecified by the wit«» 

ncfles for the plaintiffs, the fhip might have proceeded to 

Cbum^ or have returned to Europe^ or might have ftretched 

over to Achemy or Malacca^ or have gone to Ceylon^ with 

more propriety than to Bengal^ for the purpofe of careen«t 

ing, if that had been necefl'ary. But, on thefe matters of 

opinion, the defendant's witneffes differed from one 

another very confiderably, in feveral particulars. 

Lord Mansfield told the jury 5 i. That Bengal was 
certainly not within the words of the policy ; But, 2. That, 
if they fhould think, that, at the time of the fhip's depar- 
ture from Pofidicherryy the captain and officers were, bond 
ßdcy of opinion, that to go to Bengal was a matter of 
neceffity, or what common prudence rendered their in- 
difpenfable duty, and that there was no other motive for 
going to that place inftead of China^ they muft find for 
the plaintiffs ; for that going to any port, though out of 
the courfe of the voyage, is, in the eye of the law, na 
deviation, if neceffary for the fafety of the fliip. On the 
other hand, if they thought the neceffity fet up a mere 
colour and pretext, and that the voyage to Bengal was» 
determined upon from other motives, they muft find for 
the defendant. But, in confidering this queftion, they 
muft not lay much ftrefs on the opinions of other people, 
formed after the event, when tlie real ftate of die {hip, 
and the nature of the leak, had been difcovered. Men of 
different degrees of Ikill, experience, or underftanding, 
might differ extremely in their judgment on the fame 
fubjeft, as they had feen by the diverfity of opinions 
delivered by the different captains who had been ex« 

2. On the trial of Bize v. Fletcher y the coun&l for the 
defendant contended, that the reprefentation accompanying 
the policy reftrained the voyage to the limits therein fpe- 
cified, and brought jthe merits of the cafe to be the fame 
as in Lavabrc v. Wilfon; and they produced Ibme addi*» 
tional evidence, (particularly fome letters written by the, 
owners to their correfpondents who had got the policy 
underwritten^) to raife a prefumptioui that the nccelBty 

T4 of 


1 77Q« ^^ go*"8 ^^ Bengal was merely a pretence» devifed after 

, ' ^^ p the capture, and when the mfured began to apprehend 

Lavabrb that the words of the policy would not cover a voyage to 

againft that place. 
Wilson. Lord Mansfield, in fumming up to the jury in this 
caufe, after ft?iting very fully the difference between a 
reprefentation and warranty, told them, that, if they were 
fatisfied that the real intention at the tim<p of the reprefenr 
tation was to go to Ckina, the plaintiifF would be entitled 
to their verdid ; for that the infured might change the 
intention in this cafe, and go to Bengal^ and yet be pro- 
te£led by the policy, which clearly admitted of that voy- 
age, and mud have been underftood b^ both paities in a 
Greater latitude than the reprefentation, being expreffed in 
iffercnt and much more comprehenfive terms. His Lord- 
jfhip then dated, and obfer>'ed upon, the evidence which 
was given on the part of the defendant to (hew that the 
ncceflity was fiftitious ; being (I prefume) of opinion that 
if the jury had believed it to be fo, it would have zSordei 
' a prefuniption that the original plan, even at the time 
of the rq)refentatioit, was to go, not to Ciinaf but to 

When the motion was made for a new trial in Lavabre 
V. Wllfon^ the new evidence which had been produced in 
B'fze v; Fletcher was relied upon ; but Lord Mansfield 
told the counfel, that, if they meant to make the dif- 
covery of new and material evidence the ground of their 
motion, they muft lay it before the court by affidavit, that 
there might be an opportunity given to the other fide of 
anfwering it ; for that he could not, in his report of what 
pafied on the trial of Lavabre and Wllfon^ ft ate any of the 
evidence produced in the other caufe, — Such affidavits 
were afterwards produced. 

3. The evidence in the cafe of Lavabre v. Walter^ was 
nearly the fame as in Bi:u v. Fletcher. The fecret in- 
ftruöions given to Berard had been more attentively pe- 
rufed, and afforded ftronger reafons than they at nrft 
feemed to do, to fufpe£l that the voyage to Bengal was 
predetermined, before the departure from VOricttt. The 
plaintiffs' witneffes were much preffed on this occasion, to 
fay, whether the latcnefs of the feafon alone was fuch as, 
independent of the leak, would have determined them to 
abandon the China voyage ; and, on the other hand, whe-^ 
ther the leak, independent of the other reafoh, would, in 
their opinion, have rendered it neceffary fo to do. To 
this thcfy faid, that they could not give a certain anfwer 5 
for that, as neither of the cafes had happened, they had 
not excrcifcd their judgment upon them. 

The counfel for the defendant infifted, that, if the latc- 
fiefs pf the feafon was the fole or predominant reafon for 



ml>andpning the voyage to Chinas ^e infured could not I77Q« 
juftify the deviation tp Bengal: for that, wheq an infured \ - - j 
voyage is abridgtdi the (hip muft return back in the courff? Lav ab re 
iillured| and cannot juftify a deviation for the fake of again|t 
wintering ii^ a harbour more commodious perhaps than Wilson« 
any to be found on that courfe. 

Lord Mansfiei-D now fummed up very ftrongly againft 
fhe plaintiffs, on the head of fraud. But^ independent of 
that ground, he {lated a new point againft them, vizy 
that, if ncceffity were admitted to have been the folc 
motive for fubftituting the voyage to Bengal in the place 
of that to Cbina^ ftiU it was incumbent on the infured to 
have purfued Aat voyage of neceflity^ direöly, in the 
(horteft and moft expeditious manner, and that the delay 
in going from Pgndicherry to Bengal^ and the repeated 
(lops by touching at different places, and trading there, 
were deviations, and not within the prote£lion which the 
fuppofed necefBty afforded to the direft voyage. 

The rules to fhew caufe why there fhould not be new 
^ials in the two cafes of Lavabre v. IFilfiny and The fame 
y, Walter^ came on to be argued this day. 

The Solicitor Qeneral^ Cowper^ and DouglaSy for the 
plaintiffs. — Dunning^ Lee^ and Roohe^ for the defendants. 

For the plaintiffs it was argued, that, if it was true that 
there was a neceffity fufBcient to juflify the voyage to 
Bengal^ the time employed in going thither could not alter 
the cafe, as the rifk had not been thereby increafed, the 
eoafting voyage really performed being free from all hazard, 
and it being fufScient if the (hip arrived in the Ganges 
, before the winter fet in. At leail, whether the rifk had 
or had not been increafed was a queftion of faft, for the 
confideration of the jury, and they had given their opinion, 
that it wa§ not, by finding for tne plaintiffs. It was un- 
queftionable, tha^, under the words of the policy, it was 
competent to the fhip to have ftopped and touched at 
different places, yrithin the ufual courfe of the voyage de- 
fcribedy though not mentioned by name, and a vopge 
fuperadded by necejftty ought to be fubjeft to the fame qua- 
lifications, and entitled to the fame fort of latitude as the 
original voyage, it having become, by operation of law, 
ä part, as it were, of that original voyage. 

For the defendants, it was infifted, that this new point 
was a mere queftion of law, but that, in truth, it could not 
^dmit of a doubt, fince it was only this, whether, upon a 
deviation for a juftifiable purpofe, that purpofe may be [ 291 3 
abandoned, and the (hip ftop at various places for other 
unneceffary purpofes. It was abfurd to fay, that protraä- 
jng the time of the voyage did not increafe the rifk. As 
yell might it be contended, that lengthening the diftance 



^770» would not incrcafe it. Clayton v. Simmonds (tf), was cited, 
y^ ^ \^ ^ where it was held, by Lle, Chief Jußke^ << that^ if a 

Lava BR E " ^^P P*^^^ i"^o ^ P^rt not ufual, or flays an uiiufuat 
aj;ain(l ^ time, it is a deviation.** 

Wi.bON. Lord Mansiield, (after obferving upon the evidence of 

fraud, and of an original intention, or commercial motive^ 
for going to Baigaly) — If this application M'cre upon i^e. 
ground of impeaching the tcftimony of the nlaintifü* 
witnefles, whatever my private fentimeuts might be, after 
two concurrent verdi£ls, I (hould not be incUncd to inter-« 
pofc. But, without impeaching the evidence, I think 
there ought to be a new trial, or, that the cafe has 
been ill decided. The queftion is, whether, wilhoot im- 
putation on any body, circumftances have not happened to 
take the voyage o^t of the policy. A deviation from nc- 
celfity muft be juftified, both as to fubftancc and manner. 
Nothing more muft be done than what the ncceiGty re- 
quires. The true objeftion to a deviation is not the in- 
creafe of the rilk* If that were fo, it would only be nc- 
ceflary to give an additional premium. It is, that the part^ 
contracting has voluntarily fubftituted another voyage for 
that which has been infured. If the voyage to Btngal was 
unavoidable, where was the neceffity to trade ? All the 
ports touched at were out of the direii courfe, and ^xm 
weeks and t\vo months were confumed inflead of (ix days.— <• 
The juftice of the cafe required a different dccifion. 

The rules made abfolute tO 

(a) GuildhalU llth March 1 74 1» J^ondentia and hottomm oiuced>) n> the 

cited 1 Burr, 343. owners, Ber^rd and Comfairß> at i'Ori^ 

[ 1 ] The two caufcs were again fet ent. Im this contra^ the voyage was 

down for triaU but the plaintiffs» when defcrlbed as in the policy» aoa I on- 

they were ready to be called on, Tub- deriland the plaintiffs have mftituted & 

mitted to the opinion of the court, and fuit in France againd the owners, which 

abandoned their claim againil the un- is flill depending, on the ground of a 

dcrwfitcrs.'^La'vaifreaßhiComfia/tj^wcTC deviation from the voyage upon which 

bankers at Paris, who had lent the they advanced their money it the r'ifk 

fum which was the fubjed of this in- of loH ng it if the ihip and goods (honld 
furance, upon a ccmtraft a hi große' be loilt 
avanture, (that is, in the nature of re^ 

^ \ Ren, LefTee of Hall, and Others, Q^ainß 

Saturday, ' * ,^ ' » ö •/ 

aoihNov. ' BULKELEY. 

t TTPON an ejectment tried before Lord Mansfield, at 

"^-' ^ the laft alFizes for Surry^ a verdict was found for die 

fcafeVinpof. plaintiff, upon which the defendant obtained a rule to 

fcfl'ion for 21 fliew 

IT a tenant 
for life wi 
power to grant 

years at tne 

be(t rent convey his life eftite to tniilees to pay an annuity for his life, and the furplut 
to hiir.fclf, the pqwer i^ not thereby extiiigüimed» but he may dill grant a leafe agreo* 
<4>ie to the t«iius thereof« 


(hew caufe, why there fhould not be a new trial. The I77Q» 
cafe came on to be argued this day, when the faäs, as re- ^ - _ j 
ported by his Lordftiip^ appeared to be as follows: — In Ren 
1 741, by the marriage-fettlement of Lord OnJIoWf the pre- »gainft 
mii^s in queflion were fettkd upon him for life, remain- Bulkei,£Y« 
ders over in ftrift fettlement, with a power to the tenant 
for life in pofleflion, to make Icafcs, for any term not ex- 
ceeding twenty-one years, to take efFe£l: in poffeflion and 
not in reverfion, referving the bed rent that could be had 
without taking a fine. In 1754, Lord OfiJloWf by leafe 
and relcafe, conveyed all his Ufe-eftate to Brifcce, and hi« 
heirs, upon tmft to apply the profits in the payment of an 
annuity of 150/. to Ji^il/on, during the life of Lord Oti-- 
Jlowy and the furplus to Lord Otiflow. The year following 
he conveyed all his cRate to truflces, for ninety-nine years, 
if he (hould live fo long, for the payment of his debts \ but 
with an exprefs refervation as to all leafes granted, or to be 
granted. Afterwards, in 1760, he made a leafe of the 
premifes in queflion, to Lewifiy (then in pofleflion as tc- 
nant at will,) for twenty-one years, which leafe Lewiriy In 
1774, afligned to Hali, one of the leifors of the plauitifF. 
J^ord Onßoiu died in 1776, and, in 1777, the remainder-.- 
man who had come into poffeflion on his death, conveyed 
to the defendant. The fame rent was referved by the leafe 
to Lewin which he had paid for feveral years as tenant at 
wi)l, and he had, befides, covenanted for repairs. 

At the trial, an attempt was made on the part of the 
defendant, but without fuccefs, to prove fraud in obtain- 
ing the leafe for twenty-one years. The queflion now was, 
"Whether the operation of the conveyance to Brifcce was not 
fuch as difabled Lord Otißcw from making the fubfcq\icnt 
Jeafe to Lewin ? 

The Solicitor General^ Dunning^ Morgafty and Bower, 
argued in fupport of the rule for a new trial. They con- 
tended, I. That, after the conveyance to Brifcoe^ it was 
impofiible for Lord Onflow to grant a leafe in poffeflion, he 
having thereby parted wirh the whole of his life-intcreft ; 
therefore, though, in words, the leafe to Lewin conveyed [ 293 ]J 
an immediate eflate, yet, in fubftance, it was a leafe in 
reverfion, and could not commence till after Lord Onßow^s 
death, who certainly had no authority by the power to 
grant fuch a leafe. 2. That, by conveying all his eft:ate in 
the premifes to Brifcoey he had extinguifhcd the power, as 
far as refpefted him, as cfle£lually as if he had made a 
feoffment, or fuffered a recovery. They cited the cafe of 
$aviile v. Blacket (rt), and Gilbert on Ufes {b). They alfo 
fuggcfled, that, if this leafe were to be eflabliflied, the 
decifion would fliake a great many titles, for that convey- 

{a) Can^. H. 17?!. | ?. Will. in%.^ , (^) P. J. 


1 77Q, anccrs confidcred the grant of a lifc-cftatc in the nianner 
1^ '. J in which Lord Onflow had conveyed his, as exdnguifhing' 
R£N a leafing power referved to the tenant for life, 

agaiDfl Lord Mansfield, (without hearing the other fide,)-— 

BuLi^ELEr. Powers came into the courts of common law with the fta- 
tute of ufes (r), and the conftruftion of them, br the cx-r 
prefs diredion of the (latutc, muft be the fame as m courts 
of equity (rf). The creation, execution, and deftruclion 
of them, depend on the fubflantial intention and purpofe 
of the parties. It is faid, x. That the grantor, in this 
cafe, was not in pofTeflion, and that it was neceflary that 
he fliould be, to execute the power. But I think pofief- 
fion here means the receipt of the rents and profits^ which 
were applied to his ufe. If a^ual poffefiion were necef- 
fary, a leafing power could never be executed where the 
}and is in the hands of a tenant {e). 2. It is contended, 
that, by granting away his Hfe-eftate, he extinguifhed the 
power. Certainly where the whole life-eftate is conveyed 
away by the intention of the parties, the power muft be at 
an end, and cannot be afterwards exercifed to the preju- 
dice of the grantee. But the conveyance here was only to 
let in a particular charge, fubjeft to which the rents and 
profits ftill belonged to Lord Onßoiu ; and the leafc could 
not prejudice the fecurity, nor the remainder-man, for the 
beft rent muft be referved. It would therefore be contrary 
to the intention of all the parties, to hold that the power 
was extinguiflicd by the conveyance to Brifcoe. 

The rule difcharged. 

(0 27 Hen. 8. c. 10. (f) VideGoodtitUy. Fuhuc^, U. 21 

(d) 1 Burr. 1 20. 2 Burr. 1 146. Qeo. 3. infra, f. j6j. 

a^hNoT. Barber againß French» 

Inr*Hc''"of ACTION on a policy of infurance, on the ihip Ao 

iiiAuance*^for • ^"r//^ BluCy tried before Duller, Jußice^ at the laft 

an average Aflizes for Lancajhire. The counfel, at the trial, had be-» 

lofs» if the gun to examine witnefles to prove the amount of an intri-? 

rm^licatc/'^ ^^^^ average lofs, but the Judge thought it would be im- 

tliat u cannot P^fiible to adjuft 9 complicated account of that fort at Nlfi 

beadjuftedifi Prius, He therefore propofed, that a verdift (hould be 

court, the found as for a total lofs, the plaintiff entering into a rule 

jury, ^y CO"- to account upon oath to the defendant for what he might 

iMrtics, may recover of the property infured. The defendant, upon 

And for a to- this, defifted from crofs-examining farther as to the parti- 

tal lofs, the culars, value, ^c, and a verdi£l being found as for a tofal 

terTn "bto"ä ^^^*' ^^^ "^^^^ propofed was entered into ; but the defend- 

rule^^to ac- ^^^> being afterwards diflatisfied, moved for, and obtained 

count upon a rule 
•aih for what part of the iofored pro^^e may recover. 


a Tulc to (hew caufe why there ihould not be a new trials 1 770. 
on the ground that the evidence did not go to a total but ^ _ j 
only to an average lofs. The plain tiff was a bankrupt, and Barbch 
it was now faid, as an argument for making the rule abfo- againft 
lute, that his aflignees were not bound, and that the rule Fasmch« 
could not be inforced by attachment againft them. This 
difficulty however was obviated by the counfel for the 
plaintiff dating, that the aflignees would enter into any 
undertaking for the purpofe of making the rule binding 
upon them. Lovd Mansfield faid, he had often known 
fuch rules made, where the account was fo complicated» 
that it could not be taken in court, and blamed the defend- 
ant's conduä in defiiting, at the trial, from the examina- 
tion as to the particulars of the damage, after the propofal 
by the Judge, and then coming to tlie court for a new 
trial, on the ground that there was not a total lofs. * He 
faid, if the plaintiff, or his aflignees, fliould not comply 
with the rule by which they undertook to account, the de- 
fendant might apply to the court to flay execution. 

The rule difcharged. 

[ 295 ] 

Butcher and Another, Affignees of Revett, Saturday, 
a Bankrupt, againß Easto. »oihNor. 

'T'HIS was an a£lion of trover y by the afTignees of a Adcbtcon- 
•* bankrupt, to recover the v>lue of goods which had *"^«d h^on 
been conveyed by the bankrupt to the defendant, under a *n™ radT** 
bill of fale. The caufe was tried before Blackstone, may be the 
lußicey at the laft Aflizes for Suffolk^ when a verdift was ground of a 
found for the plaintiffs. On Tue/dnyy the 9th of November^ petition for a 
Graham moved for a new trial, on two grounds: i. It ^ank^ tc" — 
appeared that the debt of one of the petitioning creditors Thcexccut- 
(there being fix to make up the fum of 200 /. (a)), was on ing a bill of 
a promiflbry note, bearing date two years and a half before ^^^^,^\ '*? * 
Revett engaged in trade, and it was contended, that the and c^ftsta 
petitioning creditor's debt muft be contrafted while the pay certain 
bankrupt is aöually in trade. That, if contrafted previous debt»; the 
or fubfequent to his being a trader, a commiflion cannot oveqjy«, if 
be fued out upon it: 2. It was infilled, that the bill of cöuntwl^foT* 
fale was a fair, open tranfaöion, not an aA of bankrpptcy to himfelf, b 
m itfelf, and anterior in point of time to any aä of bank- an aa of 
ruptcy committed by Revett, — ^The rule to (hew caufe was bankruptcy» 

This day-, when it came on to be argued, the court de- 
fired Graham to begin, who abandoned the ßrß point. 
Lord Mansfield having obferved that tlic debt, though 
contracted before, continued a fubfifting debt wiiilc the 


{a) 5 Qw, 2. c. 30. § 23,. 


1 770. bankrupt was in trade (*). On the fecfmd point, the faftj 

^ ^ , appeared, from the Judge's report, to be thefe : On the 

Butcher >9th of February 1779, Revtti being arrelled for a 4cbe of 

againd 76/. 9/. 8 rf. defired the bailiffs to carry him to Emßfti 

Kasto. a creditor, whom he rcquefted to bail him. Eiißo refufed | 
but, Re%yett propofing to execute to him a bifi of fale of 
all his cffedVs, for the debt for which he was arrefted, and 
alfo for his debt to him, which was 25 /. 9 /. he confented 
to give a bond for the 76 /. 9 /. 8 d. payable at the return 
of the writ. Revrti w^s thereupon diiehargcd, and, the 
fame evening, executed a bill of fale of all his gosib änj 
effeEls ^*katfoever to Eaßoj with poM-cr to enter and fell the 

t 296 ] Jame, for the purpofe, in the firft inftance, of paying the 
foi /. 18 J. %d. and afterwards to pay the overplus, if 
any, to Revctt himfelf. The next day, (the 20th of Ä-» 
bruaryjj F.aßo was put into pofleffion of the efFefts, and 
continued the pofTeffion till he fold tlicm on the 15th of 
March following. That fame day, (20th February^ Revttt 
figned an order, and, with Eaßo\ confeot, annexed it to 
the bill of fale, by which he agreed, that, befides the two 
debts above-mentioned, it fliould alfo (land as a fccurity 
for another of 33/. i8j. lorf. due to his landlord. On 
the fame day, he committed an ad cf bankruptcy, by 
keeping houfe, and foon after abfconded.— Blacrstone, 
JuJIirt'^ had been of opinion, that the execution of the 
bill of f;iie, under die circumftances, was itCdf an aä of 
^ bankruptcy. 

Graham now infilled, that this was aot a fraudulent 
conveyance within the meaning of the ftatute of Jac. I« 
{<:). That tliere were none of the badges of fraud hi:rc 
which are mentioned in Tivyne^s Cafe (d) ; no fecrccy, no 
collußon, nothing that could make it a fraud upon the ge- 
neral creditors. The aflignment was only partial, for the 
particular purpofe of paying certain debts, after which thd 
furplus was to be accounted for to Revett^ and, therefore^ 
tliis could not be confidercd as a conveyance of all \m 
cfFcdls. He cited W^orßey v. Demattos (<?), W^ilfon v. Dof 
(/), Hague V. Rolleßon {g), Alderßn v. TempU (A), Ruß v. 
Cooper (/), and Linton v. Bartlet (k) \ and endeavoured to 
diflinguifh them from this cafe. 

Lord Mansfield, (without hearing the other fide,)— • 
This is a ftronger cafe than any of the former. The bill 
of fale was a fraud on all the bankrupt laws. It was a 


{h) Vidi PtnrivL v. Daintry, B. R. (/) ^* 3* ^ 33 ^^- 2. 2 Burr. 827. 

19 Car, 2. I ^f^. 411. ideggot v. (g) H, 8 Gm. 3. ^ Burr. 2174. 

Miiis, B. R. 9 ff^ill. 3. I Ld. Rajm. (h) T. 8 Geo. 3. 4 Btarr., 2174. 

286. (r) B. R.T. 17 Geo. 3. cited /m^ 

(f) I Jac. 1. 'c. 15. § 2. pra, 87. 

{d) M. 44 EL 3 Co. 80. h. (k) C. B. H. 10 C«. 3. 3 IFilf. 47. 

\e) H. 3 1 Geo, 2. \ Burr. 467, 


conveyance of all he had in the world ; and for what prut- 177(5. 
pofe ?'To pay the man who had arr'cfted him, but who had ^ - — , ^ 
no judgment againft him, and two other creditors. Wliy Butch eh 

E refer the perfon who arretted him to other perfons who apai«ft 
ad not proceeded with fo much rigour? He muft have Easto. 
hnd the act of bankruptcy, which he committed in twenty 
four hours afterwards, in contemplation, at the time. Be- 
fore Worfwy V. Damtttos it had been determined, that a 
conveyance of all the efFefts is an ad of bankruptcy ; be- 
raufe it puts an end to all trading. Was it polfible for this 
man to carry on his bu'fmefs after the bill of fale had fwept f 207 1 
away all his ftock and cffcfts [i] ? 

The rule difcharged [f 78]. 

f i5 Vide La^ v. SJiiuner, C, B. £. [t /^J Vide Dta;9n v. iratts, H. 

15 G. 3. 2 Blackß. 996. which was a 19 GV«. 3. ßtprup p. 86. ^ HaJJells v. 

cafe very fimilar to the prefent, and Simp/on^ B. R. H, z^Geo, y futra^ 

determined in the fame manner. p. 89. "Note [f 39]. 

Mason againft Hunt and Another. 

'TpHIS was an aöion brought againft the defendants, 
-■' who were partner», as acceptors of ^w bills of ex- 
change to the amount of 3200/. Rtnuland Htwty one of 
the defendants, happening to be in Dominica on the 17th 
of April 1778, wrote the following letter to his partner 
Thomas Huftty the other defendant, in Loiidott : — " As our 
** friends Fance^ Cahhvell^ ami Vauccy (who were mer- 
** chants in Dominica^) have made purchafe of about 100 
** hogfheads of /r/z^'-tobacco, and purpoie (liipping them, 
^* or as many of them as they can get, by this convoy, I 
•* have agreed that, on their giving you orders for infur- 
^* ance on any part of the fame, and fending bills of lad- 
•* ing configncd to you in Londofi^ what bills of exchange 
** they draw thereon at the rate of 80/. per hogfhead, 
" from 90 days to fix months fight, as ft all be determined, 
*** will bt duly accepted and paid by you, and doubt not 
-•* your punftual adherence thereto." — On the firft of May 
following, Vanrey Caldwell^ and Vance^ wrote to the de- 
fendants, ordering infüranceupon4ohog(heads of tobacco,— 
3600 /. without taking any notice of having drawn any 
bills. This letter was received on the 6th or 7th of July^ 
and, in confequcnce thereof, Tf^nas Hunt got the fum 
mentioned infured for a premium of 303 /, On the fame 
ift of Mayy Vofice^ Caldweity and Fanecy wrote another 
letter to Thomas Hunt, apprifing him, that they had drawn 
fix bills of exchange for 3200 /. in confequenec of Row/and 
Hunf% lettef, payable to Robert Vance^ and indorfed by 
iiim to tlie plaintiff, drawn oh forty hogiheads of tobacco. 


»3d Nov. 

An agreement 
to accept a bill 
on certain con- 
ditioi.s is dif. 
chtri'cd if the 
conditions aie 
not eomplied 
with. — Ifihcre 
18 a v;>/i/a/ ac- 
ceptance, on 
that goods 
OialJ be con- 
figned to I he 
acceptor to 
anfwer the 
bill, toge- 
ther with a 
policy of in- 
furance upuii 
them, the 
holder of the 
bill, by tak- 
ing to the 
goods and {z\m 
ling them, 
diichargfs the 

* CAS£S tN iiltHA^tUAS TEkM 

This letter was received on the loth of Vu/y. On the 
^ ^ ^ nth, the bills arrived and were prefented/or acceptance 
'Mason ~ togerfier with Rowland Huntes letter of the 17th oi Afrili 
againft Thomas Hunt refufed to accept them^ and, after a nego^ 
Hunt. tiation of two or three days, a memorandum was (igned by 
I 298 3 the plaintiff, which, after dating the bills, proceeded in 
thcfe words ; " "Whereas forty hogflieads of tobacco have 
<< been configned to MeiTrs* Thmas and Rowland Hunt^ 
«« on account of the above bills, and they being apprehen« 
<< five that the net proceeds thereof may not be fufficient 
<< for that purpofe, have refufed to accept the (aid bills, 
•* we therefore accept the bill of lading of the faid forty ' 
<' hogfheads of tobacco, and the policy of infurance for 
•« 3600 /. to cover the fame in cafe of lofs (being valued 
*« m the faid policy at 90 /. per hogfliead) both which we 
•* now acknowledge the receipt of, and that we will apply 
•« their net proceeds when in cafli to the credit of Mr- Ä> 
•« bert Vance^ as far as the faid proceeds will go, in part 
•* payment of the above bills. Kender Mafon for fcif and 
•* late Co." The tobacco afterwards arriving was received 
«nd fold by the plaintiff, and produced only about 1400 U 
The occafion of the difference between this fum and the 
valued price in Rowland Hunf% letter did not appear« • 

The caufe was tried before Lord Mansfield, at the laft 
Sittings at Guildhall^ when the plaindff infilled, that Row^ 
land Huntes letter of the x 7th of jiprll was a virtual accept«- 
ance of the bills, and that nothing had happened to di& 
charge this acceptance. That he was therefore entitled, 
as holder of the bills, to recover the difference between 
their amount and the price for which the tobacco fold.—* 
The defence was, that the letter did not amount to fuch 
virtual acceptance ; but, if it did, that the memorandum 
had cancelled it. — There was a Verdi^ for the defendants^ 
and a rule for a new trial was obtained, which was argue! 
on Tue/day the 16th of November^ by Dunning^ and CoW' 
fer, for me plaintiff, and the Solicitor Genera/^ and Lee, 
for the defendants. 

In fupport of the verdi£l, it was contended ; i • That 
the agreement contained in the letter, on which the plain- 
tiff relied as a virtual acceptance, was only conditional, 
qualified, by the contingency, of tobacco of the value of 
80 /. per hogfliead being configned to the defendants* U 
the bills, together with die letter of the 17th of Apri/^ had 
been (hewn on the Exchange, and the refufal of Tiomai 
Hunt to accept them mentioned at the fame time, no merr 
chant would have taken them as bills payable by the Huniu 
But| 2. If there had been an unqualified virtual accept- 
ance, it would have been difcharged by the fubfequent 
tranfaftion. The inducement to the agreement to accept 
was «-he profit of the commiilion. Could it be fuppofed» 



that it could be the meaning of the parties, that the de- j 77a. 
fendants ihould continue bound for the difFerencc between i ' « 

the produce of the tobacco^ and the amount of the bills, Mason 
and yet relinquifh, to the plaintiff, the profit of the com- asrainU 
miffion, the power of felling when he pleafed, and the fe^ Hunt. 
curity of the bills of lading and tnfurance ? 

For the plaintiff, the cafe of Pillans y.'FaH Mierop {a) 
was cited, as an authority to prove, that there may be, by 
letters, or agreement, a virtual acceptatice of a bill of ex-» 
change ; which, independent of any authority, they faid, 
was clear upon reafon and principle. The letter of Row^ 
land Hunt was fuch an acceptance ; and, as to the tranf-» 
adion which was contended to be a difcharge, how could 
it ht imagined that Mafrn had confented to take, in lieu of 
the whole, what was likely only to produce part of th« 
amount of the bills, when he had an acceptance for the 
whole ? The clear intention was, that the plaintiff (hould 
fell the tobacco to difcharge the demand on the bills, as 
far as the produce ihould go, but without prejudice to 
either fide. 

The court took time to confider ; and, this day. Lord 
Mansfield, after ftatihg die fafts as above fet forth, deli- 
vered their opinion, as follows : 

Lord Mansfield, — ^The defence at the trial was, that 
the tobacco was not of the ftipulated Value, and that the 
Hunts never meant to be in advance for the drawers. As 
to the firft queftion, there is no doubt but an agreement to 
accept may amount to an acceptance, and it may be couched 
in fuch words as to put a third perfon in a better condition 
than the drawer [0C>]. If one man, to give credit to ano- 
ther, makes an abfolute promife to accept his bill, the 
drawer, or any other perfon, may fliew fuch promifc upon 
the Exchange, to get credit, and a third perfon, who 
ihould advance his money upon it, would have nothing to 
do with the equitable circum (lances which might fubfift 
between the drawer and acceptor. But an agreement to 
accept Is ftill but an agreement, and if it is conditional, 
and a third perfon takes the bill knowing of the conditions 
annexed to the agreement, he takes it fubjeft to fuch con- 
ditions. Here there were many things fpecified as the 
conditions of the acceptance — the infurance — bills of lad- 
ing — confignment — a certain number of hogiheads to be 
delivered — of a certain value rated by the hogfhead. On 
the face of the agreement, I thought, at the trial, and 
ilill incline to think, that the meaning of the parties was, 


(/i) B.R.E. $Geo.i;. ^Burr. i66}. ^. 3. cap. 17. § I. f^ $ iff ^Jnn. 

\ty] The parole acceptance of in- cap. 9. § 5. LumUys. PalmertB.R.M. 

land bills of exchange (as well as fo- 8 Geo. 2. Ca, Temp. LoriHarJw.'j^. 

reign) is goodj notwithflaading 9^10 2 Sir. 1 00. 

Vol. L U 

CASES IN MTCHAfiLÄlAS TERM tobacco fhould be configned which Ihould be worth 
80 /. per hogfliead. PWz^-tobacco muil, at that time, have 
M A^o N meant American tobacco ; and it is well known, that there 
again ft is a very great difference between the value of riic American 
Hunt. tobacco, and what comes from the French iflands. The 
difference here is immenfc. The produce of the tobacca 
configned was only about 1400 A It is plain the Hunts 
never meant to l>e in advance, and I think fo great a differ- 
ence in the value fuch a fraud as to entitle the defendants 
to relief again fl the agreement. But, as to this, the refl 
of the court have doubted, chiefly becaufe there is no evi- 
dence to (hew how the decreafe in the value arofe ; whe- 
ther, from the inferiority of the quality, or the fiufhiation 
in the market. If it arofe from buying up refufe tobacco 
from the French IVefi Indies^ the fraud would be clear. 
But the reft of the court are extremely clear that the fe- 
cond inftrument makes an end of the whole, and I think 
the grounds and reafons are unanfwcrable. As to that part 
of the cafe it ftands thus : The Hunts fay, ** We are not 
** bound. Tliis is an impofition. The tobacco is of an 
" inferior value. The letter reprefents it as worth 80/. 
** The infurance makes it 90 /. per hogfhead, and it tums^ 
** out not to be worth 40 /." If Ma/on had meant to fay, 
«' you are liable, and (hall pay the bills." what would his 
condu6l have been ? He would have left the policy of in- 
furance, and the bills of lading, in their hands, and fued 
them upon the acceptance. The temptation to accept was 
the commilTion on the confignment, and they were to have 
the fecurity of the goods and the infurance. But the 
plaintiff undoes all this, and fays, " Then I will take all 
« from you — fecurity, commiffion, fafr." — ^This was fay- 
ing, ** I will ftand in your place, but not fo as to be an- 
" fwcrable for more than the produce of the tobacco.** 
It is impoffible the defendants could mean to accept, with- 
out any benefit or fecurity. We are all clear that this- 
made an end of the agreement. 

The rule difcharged [f 79]. 

[t 19^ ^'^^e Dingivall v. Dunßer, fufra, p. 247. 

JIthNo?/' The King againß Jones, alias Tho- 


In an India- ^T HIS was an indiftment for forgery, which was tried- 
^ri"' ^a for ' ^^^^^^ ^^^ Mansfield, at the lalt Affizes for Eßx. 

edßfnk nofc, '^^ indiftment coufifted of fix counts. Upon the firft^ 
the words, fccond^ 

< purporting to bc a Bank note,' mean, that the note, upon the focc of it, appears to b« 
a Bank note, and the want of fuch appearance cannot be fupplied, lb as to iu|>^rt the 
ladittroeni, by any re|ii^cnution« of iht pany when bc difpolcd of it. 


lecond, and fifths (which charged an intent to defraud 1770 
the BatJt of England^) the prifoner was acquitted. Tlie ^ _ . 

third fet forth, that he " having in his cuftody a certain 'i^^e Kino 
** forged and counterfeited paper-writing purportifig to again ft 
** be a Bank-note^ the tenor of which forged and coun- Jones. 
^^ terfeited paper-writing is as fullows, viz. — No. F. 
** 946. I,promr/e to pay to John Wilfon, £/q; or bearer y 
** ten pounds. London, March 4th, 1776. For felf 
** and company^ of my hank in England. L. i o. Entered 
** John Jones, — felonioufly difpofed of arid put away the 
** faid forged and counterfeited paper-writing, as and for 
** a good and true Bank-note, well knowing the fame to 
** be forged and counterfeited, with intent to defraud 
** Janus Rayner y againft the form of the ftatute, ö*r." 
The fourth count only differed from the third, by calling 
it a certain forged and counterfeited notCy inftcad of paper-» 
writing. The fixth charged, that the prifoner did utter 
and publifh, as true, a certain falfe, forged, and counter- 
feited paper-writing, purporting to be a promiffory note for 
payment of money, (and then fet forth the noic as above,) 
with intent to defraud the faid James Rayner, 

On thefe counts a fpecial verdift was found, viz. as to 
the tbird ; that the paper-writing, purporting to be a Bank- 
note, in the faid third count fet forth, was not a note filled 
up by any of the officers of the Governor and Company of the 
Bank of Engiandy or entered in any of their books, but 
was forged ; that the prifoner well knowing it not to be a 
note of the Governory &c. but to be forged, averred it to 
be a good Bank^notCy and difpofed of it as fuch to James 
Rayner y with intent to defraud him, and that Rayner took 
it from the prifoner, and gave him 10/. for it, believing it 
to be a true Bank-note ; that the Bank frequently pay Bank 
notes which are filled up by their officers, and entered in 
their books, although they nappen not to be figned. The 
finding on the fourth count was the fame, only calling it, 
as in the count, a note, inftead of paper-writing. On 
thcfxthy they found, that the faid paper-writing, purport- 
ing to be a promiffory note, £5*f. was not fdled up, ÖV. 
and that the prifoner knowing, i^c. averred it to be a 
good Bank-note, and uttered and publiihed it as fuch, is^c* 
as on the third count. 

Fielding argued, on the part of the profecution, that the 
charge and finding were fufficient to conviÄ the prifoner. 
That, if a forged note is made in the form and appearance 
of a Bank-note (/i), it purports to be one, although not 
figned, differing in this refpeö from a forged deed, which [ joa 1 
cannot be faid to purport being a deed till it is figned, the 
fignature being of the effence of that fort of inftrument. 
That, from the finding, it appeared, that the nQlt purported 

(«) Which this waa« 
U a 

The Kino 
again ft 


to be a Bank-note to the man who received it» and that 
fimilitude is not at all neceflary to conflitute a for- 
gery. He admitted, that the finding did not fupport^the 
fixch count. 

Mingay was of counfel for tlie prifoner; but Lord 
Mansfield flopped him, and faid, that the rcprefentaftions 
of the prifoncr to Raynevy after the note was made, couJd 
not alter the purport^ which is what appears on the face of 
the inftrument itfelf. Such reprefentations might make 
the party guilty of a fraud or cheat [i]. 

The prifoner difcharged. ' 

on that occafion, and the prefent in* 
diftment preferred. Lord MansfitU 
faid, he thought the cafe clear at the 
trial, but that he had directed a fpedal 
verdid on account of the doubt «I 
BUuiftone, Juftice. 

5i] The prifoner had been indifled, 
brought to trial, as for z, frauds 
before mackfiont^ Judice, at the for- 
mer Aflizes, but, as he entertained a 
doubt whether the offence was not ra- 
ther a forgery with intent to defraud 
the fiank^ the prifoner was acqintted 

Monday, a 9th 

It is not fet. 
tied, whether 
and fanmmge 
of a forelt are 
rateable under 
43 El* €, 2. 

[ 303 ] 

Jones agalnß Maunseli;. 

'npHIS was an a£lion of trefpafs, for taking the plaintiff's 
^ cattle, on a diftrefs for the poor-rate. The queftioii 
was, whether he was rateable under the flatute of the 43d 
of Eli%. cap. 2. in refpecl of the herbage and pannage of part 
of Rochngham forefl, called the Lawn of Bedingfieid. A 
verdift having been found for the plaintiff, the cafe was 
argued, in Michaelmas Term, 19 Geo, 3. (/i), on a rule to 
(hew caufc why there fhould not be a new trial, by Hill^ 
Serjeant, Wheeler^ Green^ and Lee^ for the plaintiff, and 
Cujly DuNftingy and Dayrelly for the defendant. After the 
argument, the court dtreäed, that inquiries fhould be 
made on both fides, in order to difcover whether there wa» 
any inftance of fuch property being rated in any part of 
the kingdom. The refult of thofe inquiries was, that no 
inflance could be foimd ; and there being a difference of 
opinion in the court, the caufe flood over for judgment 
till this day, when Lord Mansfield flated the cafe, 
and the reafons for granting a new trial, to the following 

Lord MANsriEtü, — ^This is an aftion of trefpafs. The 
declaration confifts of two counts. The firft for entering 
the plaintifPs clofe, and taking his cattle. The other for 
taking his cattle generally ; and upon this the caufe pro« 
ceeded ; and not guilty being pleaded, the queflion was, 
whether the herbage and pannage of the La^un^ part of 
Rockingham forefl, is a fpecies oF property rateable to the 
poor. If it is, the defendant was entitled to a verdid ; i£ 
' not^ the plaintiff. The plaintiff's interefl was as occopier 

<«) Tburfimff igtbiViw. 177.9. 


under Mr. Hitttotiy but whether as tenant, manager, or l^^(^^ 
fervant, did not fully appear; but it did appear that he \ -^ j 
was a perfon in the vifible occupation of the property. Mr, Jones 
Hatton^s title was under a grant from Queen Elizabeth^ to agaiofl 
Sir Chrtßopher Hattonj of the office of keeper of the Lawn Maun sell 
and deer, and of the herbage and pannage. In the 4th 
Inftitute, herbage and pannage is thus explained. " He 
<* that hath the herbage or pannage of a park by the grant 
*« or demife of the King, or any other, cannot take any 
** herbage or pannage^ but of furplufage, over and above 
** the competent and fufficient pafture and feeding of the 
** game ; and if the owner of the game fufFer the game fo 
** to increafe, as there is no furplufage, then he that hath 
** the herbage and pannage cannot put any beads in the 
** park." The fame definition is adopted by Sir Francis 
Northy in his argument in the cafe of Potter v. North (a). 
The form of the afleflment was on the lodge and Lawn, 
but there was no queftion on any thing but the herbage 
and pannage. The caufe was firft tried before Black- 
stone, Jnjlicej and he inclined to think, that the property 
was not rateable, but the jury found for the defendant. It 
then came on here, on a motion for a new trial, when a 
great deal was faid about the fituatioii, whether parochial 
or not ; but the court ftript the cafe of every thing of that 
fort, and, without giving any opinion, direfted a new 
trial, on the fingle queftion, whether rateable or not. On 
the fecond trial, Ashhurst, Jußice, delivered it as his 
opinion to the jury, that the property was not rateable, 
and they found for the plaintiff. Another motion for a • 
new trial has been made, and the queftion fully argued at 
the bar. Since the argument, there have been confiderable 
xioubts in the court, which have been the occafion that the 
cafe has ftood over till now. We have long been agreed 
upon two propofitions : v/z. i . That the uncertainty of 
the value is not material ; that mcfrely afFefts the quantity 
of the rate : 2. That whether the herbage and pannage is [ 304 J 
enjoyed by the grantee in fee, or by a tenant for life, 
years, or from year to year, or by a keeper or fervant, is 
not material. If the property is rateable, any of thofe 
forts of occupiers are. Thefe two propofitions lay out of 
the cafe all the particular circumftances concerning the na- 
ture of the plaintiff's occupation, and bring it to the (implc 
queftion of law. Upon this we have been long divided, 
and we have confulted fomc of the other Judges, . but 
without fatisfa£Hon. The arguments againft the rateability 
were, that the owner or grantee of the foreft might deftroy 
the property entirely, by increafing the number of the 
deer. Such grantee would be rateable to the full value of 
the whole, for the foreft is only exempted from the poor- 
(fl) 1 Ventr. 383. 391. 
U 3 


Ijng. täte while in the hands of the CTown, . By difaforefting^ 
^ Z _ jf the herbage and pannage might be extinguiOied. It is a 
Jones fpecies of property which does not lie in occupancy, and 
again ft trcfpafs or ejedment will not lie for it. There is no in* 
Maunsell. (lance where it has been rated, though there is a great 
deal of this fort of property in Ae kingdom. The autho- 
rities on this (ide were Vaughan i88. 2 Bulßrodt 249. 
Crohe^ Car. 492 (a). I Levinz. 2 1 3. On the other fide 
of the quclHon, the confequcnce from the cafes' concerning 
occupancy was denied ; for, though this property might 
not lie in occupancy, according to the ftriä common-law 
fenfe of the word, it might be occupied within the mean- 
ing of the ilatute of Elizabeth. If fo, the ufage would 
not alter the queftion. The cafe of RowIIs v. Gt/I [i] was 
C 305 ] much relied on ; but it did not convince, becaufe there the 
profits arofe from the ownerihip of the foil, (whereas herb- 
age and pannage is only a privilege,) and eje£lment will lie 
for a mine, Cro, Jac. 150. (^). Another cafe, in 3 Kehk 
540, was more material (r). That cafe goes to (hew, that 
toils are rateable, and they do not lie in occupancy, accord«« 
ing to the legal definition, nor can they be the fubje£l of 
an dedlmcnt. The authority of that cafe however was 
much doubted. It is a loofe note, by a bad reporter, of a 
rule to (hew caufc ; and it does not appear that caufe was 
ever (hewn. But the c;ife was fo appofite that, in the laft 


{ä) PI. ly. a yard of ground a4joining to their 

[1] The cafe pf Jtoivlls v. Gill k work; and great quantities of land 

Another f was determined in this court are rendered ufelefs by working the 

in £. 1 6 Geo. 3. [f 80]. It was an mines; Theft duties had never been 

aflion of trefpsü's tor taking lead ore ; rated, but, in the neighbouring pari(h, 

vcrdidl for the plaintiffs and a cafe re- the Duke of Devonjhire had been rated, 

fervedy which Ihited ; That the plain- under the fame circumftances» for 40 

tiff was, (in coDfideration of 1590/. years ; The miners, or the propnetors 

paid to the King as a fine,) leiTee of all of mines, in the county of Derij, had 

the lead mines, with the lot and cope, never been raced, 
in the foak or wapentake of IVorkf- ^ullitr, Jußicty (then at the bar,) 

'worth 9 in Derhy/hire^ for 31 years, at argued for the plaintiff, and Wheeler 

144/. per ann, ; That he was a/Tefled for the defendants. 
to the poor for lot and cope, and hav- The court held that thb property 

ing refufed to pay was diilraincd upon ; was rateable, and not within the reafon 

That lot is a duty of the 13th dim or of the cafes of the Smelting Compaxj v. 

meafure of lead ore, made merchant- Richard/on, M. 3 Geo. 3. ^Burr. 1341. 

able ; cope 6d, for every nine difhcs and Rex v. fandenuaUt ^.33 Geo. 2, 

r^iifed at the mines ; Thole duties were 2 Burr. 991. 

VvLriivHit any rifle to the plaindff; They {b) B. R. H. 4 Jac. I. Ccmjn v. 

j^ro.lac J in that year 500 /. but varied KinÜo. 

a- J wi-: uncertain in their value ; All (r) Corporation of Ifickham v. tbi 

Xi\ xCi.g'? i'ubjcdts may dig ore in the Mayor, pU 36. 
pUu\:^ ar.d arc entitled to a quarter of 

[t 80] Since reported, Cowp. 453. 


vacation, I got an inquiry made in the country to which it j 770. 
{"clates, and I found that the toll there mentioned has been ^ _ ^ 
rated as far back as memory goes [2], This confirms the _ Jones 
note in Kei/e very much, and (hakes the opinion againit again ft 
the rat^ability. The queftion is of great confequence, and Maunsell« 
affefts many perfons, and, therefore, we are all of opinion 
that there fhould be a new trial, in order that the parties 
may have an opportunity of having the point fettled upon 
a fpecial verdift in the moft folemn manner known to 
the conilitution. 

The rule made abfolute (rf). 

[2] The toll of Putney bridge is re- 667. Since the laft edition of this 

gularjy related in Putney panlh, and work, the gate on the Putney fide has 

alfo in Ful/jam, being valued at the been taken down, 

fame fum, (700/. a year.) in each- {J) t:> In Lord Bute v. Grindall, 

There aie coileäors at each end. At B. R. T, 26 Geo. 3. i ^erm Rep. 

firft there was none at the Pm/;»?; end, 318. ^the court were clearly of opi- 

and then the bridge was not alFefred nion, that the plaintiff as raneer of 

in Putney. }& Rex v. Aire Naviga- Richmond park, was not rateaole in 

rion, M, 29 Geo, 3. 2 I'erm Rep. 660. refped of the herbage SLnd pannage. 

Barber againß Fletcher. ^y^^^y'*^*^ 

'TP HIS was an aöion on the fame policy with Barber v. a reurefent- 

^ French {a\ tried at the fame time, the fame rule en- ation made 

tered into, and a fimilar verdiä found j but here, befides ^® ^^^ ^/^ 

^he ground mentioned in that cafe, there was another "^t d T^*^!! 

ftated, viz. that, fince the trial, a material reprefcntation j|,g others. 

which had been made to Shtilbred the firft underwriter on A reprefenta* 

^he policy, and which turned out to be falfe, had been ^»on, that the 

difcovered. After the other cafe was difpofed of, this l^'fji'^^^'u 

ftood over, on this point, till an affidavit of the fadl fhould ^o^ft of Afric» 

be procured from Shulbred. on fuch a day, 

* Caufe was this day (hewn, when it appeared, from ShttU »« not matc- 

kred*^ affidavit, that, when he figned the policy, in March »»!> 'o a&to 
^111 • r x \ tn- Vitiate the po- 

1778, the broker was gettmg fcveral others, on other ihips, u^y^ although 

fubfcribed at the fame time, all belonging to the fame it ihould tura 
owner, and faid, fpeaking of them all — " Which veflcls out, that (he 
•« are expcfted to leave the coaft of Africa in November or |^^"f/j]j[^|j*J b**. 
" Deccniber 1 77 7." — In truth, the velfel in oueftion had forJ"°" 
failed in May 1777, and Shtilbred fwore, in his affidavit, * p ^ ^ 
^hat, if he hud known that circumftance, he would not ^ ^ 
have figned. There had been actions brought againft all 
the underwriters on the policy, except Shtdbred. 

Davenport^ for the defendant, infifted, that a reprefcnt- 
ation to the firft underwriter is confidered as made to all 
who fign after him ; and that the reprefcntation here was 
material, or at leaft fuch as ought to be fubmittcd to a 
jury, for them to judge of its materiality. 

(fl) Supra, p. 281. 







Lord Mansfield, — It has certainly been determined, in 
a variety of cafes, that a reprefentation to the firft under« 
writer extends to the others. But under what circum- 
ftances has the defendant gone to trial in this cafe ? He 
certainly knew what had been reprefented to himfelf. He 
was acquainted with Shulbred^ and had an opportunity of 
diking before the trial what had been reprefented to binu 
If therefore this evidence is nnv^ it is owing to his own 
negligence. But the reprefenution is not materiaL It 
was only an expeBat'ton^ and the underwriters did not in* 
quire into the ground of the expe£lation« This was lying 
by till after a trial, in order to make an objeAion if the 
verdidl fliould be for the plaintiff. 

' The rule difcharged [f 813. 

[t 81] In the cafe oi Shirley v. WiU 
linfin^ which came on in B, R. M, 
f2 Geo, 3. upon a motion for a new 
trial. Lord Mansfield and the reft of 
the court were clearly of opinion, that, 
if the broker, at the time when the 
policy is cfFcftcd, in reprcfenting to the 
iindcrwritcr the ftate of the ftup, and 
the laft intelligence concerning her, 
does not difdoie the whole, and what 

he conceals (hall appear mattrid to 
the jury, they ought to fiod £9r the 
underwriter, die contrad, in fach cafe, 
being void, although the concealment 
(hould have been innocent, the hSü^ 
not mentioned having appeared imma- 
terial to the broker, aad having not 
been communicated merely on that ac* 

The Enci of Michaelmas Tern) 20 G^o. \i\^ 

r 3«7 3 



Cowrt of KING'S BENCH, 

I N 

Hilary Term, 

In the Twentieth Year of the Reign of George IIL 

1—^. -^ • •1780. 

GrINDLEY againß HoLLOWAY. Tucfday, 

*^ ^ »5* Jan. 

TjnS was an aöion of trefpafs, in which, on the To entitle a 
plea of not guilty, a vcrdifl: was found for the conftable, Arc. 
defendant. In the laft term. Wood had obtained a u*|,j°"*' * ^^'^^ 
rule to flicw caufe, why it ftiould not be entered on the tH^^^Jfierz ** 
roll, that the defendant was a conftable, and that the veidiaforhim, 
a£lion was brought for what he had done in the execution '* "»"^ *>« cer- 
of his office. By the ftatute of 7 Jac. i. r. 5. (a), it is ?5^^' ^^ 
cnaaed. That if any aÖion (hall be brought againft a ^^!a7fi!^t 
juftice of peace, conftable, isfc. for any thing done by hewasaaing 
virtue or reafon of his office, he may plead the general >? *•>« execiv. 
ifllxe, and give the fpecial matter in evidence; and, if the J^"^^^* 
verdia (hall pafs with the defendant in fuch aftion, or "* 
the plaintiff become nonfuit, or fuffisr a difcontinuance, in 
every fuch cafe, th£ juftices or juflice^ or fuch other judge 
before whom the /aid matter /ball be triedf Jhall allow to the 
defendant his double co/ls. Ihere was no indorfement on the 
Poflea^ nor certificate, in this cafe ; but, in an affidavit of 
the defendant, it was fwom, that the a£l for which he 
was fuedj was done in the execution of his office. 


(a) Made perpetual, 21 Jac. i. c. 12* 


Jrood, in fupport of the rule, cited Rex v. Poland {a)^ 
^^^^__^ and Devcfti/h v. Mertins (^), a cafe on this very flatutCi 
Grindley vhere it is faid, that, when there is a verdift for thedc- 
againft fendant, the facts entitling him to double cofU are ta be 
Hol LOW AY. put upon the record by way of fuggeftion. He alfo men- 
tioned fome modern cafes, which had been fumifhed him 
by the mafter, particularly one of Hichnan v. Goring (r), 
^ note of which was read by Buller, Jußice* 

HoniKfthy for the plaintiff, infifted th?t It was clear, 
fron the words of the Itatute, that the judge fvbo tries the 
cauje nuft certify, that the aft complained of was done by 
the defendant in the exiecution of his office. The ftatute 
did not fay, ** fuch defendant fiall he allowed his double 
« cpfts," but <* the juß'ice or jußces^ &c. fial! allow bim^* 
&c. \\Tiether the defendant was or was not afting \a 
the execution of his ofhce, was an inference of law to be 
drawn from the particular fafts proved, which the judge 
at Nift Prius was able to do, but the court could not 
without trying the caufc again. The defendant's affidavit 
was abfurd ; it was fsy-earing to jnatter of law. The cafes 
cited did not apply. In that of Deveniß> v. Mertins^ the 
plaintiff having moved to difcontinue, the court made the 
payment of tlie doable cods part of the te